Mr Bakkali (who identified himself as of Moroccan origin and a Muslim) had a conversation with a colleague, during which he referred to comments made in a newspaper article about Islamic State Fighters being “confident and proficient fighters” and managing to run the country. The same colleague subsequently asked “are you still promoting IS?” which upset Mr Bakkali and resulted in an altercation. Mr Bakkali was subsequently dismissed for gross misconduct. He claimed that his colleague’s comment about IS was harassment because of race and/or religious belief and that he had suffered direct discrimination.
An Employment Tribunal rejected Mr Bakkali’s claims, finding that the remark was related to the earlier conversation and was not ‘because of’ nor ‘related to’ Mr Bakkali’s religion or race. The EAT upheld the Tribunal’s rejection of the claims. In particular, in relation to the harassment claim the EAT noted that such claims require a broader enquiry (as the legal position requires consideration of whether conduct was “related to” religion or race) and therefore context is relevant.
ACAS has published new guidance aimed at providing some key points to assist employers in preventing workplace discrimination on the grounds of religion or belief. The new guidance is available at http://www.acas.org.uk/media/pdf/a/p/Religion-or-belief-discrimination-key-points-for-the-workplace.pdf
This guidance offers useful reminders of the main types of workplace discrimination on the grounds of religion or belief, including guidance on situations which can arise related to dress codes, working on holy days and food, fasting and drinking alcohol. It also offers the following guidance about workplace conversations around religion and/or belief (such as the conversation that occurred in Bakkali):-
An employer should not try to ban outright discussions about religion or belief at work, but may be able to justify some restrictions for reasons such as protecting the rights of others, or protecting the employer’s reputation.
An employee forcing their religion or belief on other staff or customers could cause offence, which could lead to allegations of harassment (particularly where the religious views relate to sex, sexual orientation or disability).
If a colleague starts a discussion with an employee around religion or beliefs when they know others disagree with their views, that colleague is less likely to be able to claim harassment.
An employer, should have a policy on what use of social media is acceptable or unacceptable at work and away from the workplace. This can include policies relating to opinions and views on religion or beliefs.
At first glance in the Bakkali case, it would be easy to see how the colleague’s comment could amount to harassment but the Tribunal will look at the broader picture. Of course, from an employer’s point of view, conversations such as these between colleagues do of course bring their own risks. It is easy to see how in another context (for example, if similar comments were made, without the earlier conversation having taken place) then the result may well have been different. Following the approach set out in the new guidance from ACAS can go some way to protecting an employer in this situation.