|At the Tribunal|
|On 12 December 2017|
THE HONOURABLE MRS JUSTICE SLADE DBE
T/A STAGE COACH MANCHESTER
Transcript of Proceedings
|For the Appellant||MR CHARLES CIUMEI
(One of Her Majesty's Counsel)
MR FELIX WARDLE
Bar Pro Bono Scheme
|For the Respondent||MR STEFAN BROCHWICZ-LEWINSKI
Thomas Mansfield Solicitors Ltd
35 Artillery Lane
HARASSMENT - Purpose
RELIGION OR BELIEF DISCRIMINATION
Where the same facts are relied upon for a claim of direct discrimination on grounds of religious belief or race and a claim of harassment for conduct related to those protected characteristics, an Employment Tribunal does not err in determining the harassment claim if they rely on their findings of fact on the direct discrimination claim provided they apply the correct "related to" test required by Equality Act 2010 section 26. No evidence from the alleged perpetrator as to why he uttered offending words is required although an adverse inference may be drawn from his not giving evidence. Findings of fact on the context in which the words were spoken is relevant. Richmond Pharmacology v Dhaliwal  ICR 724 considered. The Employment Tribunal did not err in the test for harassment which they applied. Although a different Employment Tribunal may have come to a different conclusion, they did not err in law. Appeal dismissed.
THE HONOURABLE MRS JUSTICE SLADE DBE
Outline facts relevant to the claim of unlawful harassment
"… Mosul … was a "Totalitarian State", and that they (IS), are trying to enforce law and order upon its subjects, and that they are confident and proficient fighters, …"
"21. … The claimant was, on his own account, upset by the conversation with Mr Cotter and the allegation that he was promoting or supporting ISIS. …"
"24. Mr Tomkinson wrote in his statement that he heard a dispute between two drivers about Mr Bakkali supporting the ISIS religion. …"
He then gave his account of the altercation between him and the Claimant.
"25. Marie Green wrote that, after an argument between Mr Bakkali and Russ Cotter about Mr Bakkali telling other drivers that he supported that he supported ISIS, Mr Bakkali asked for tea then turned to Mr Tomkinson and said sorry. Mr Tomkinson replied "No worries, go ahead" then Mr Bakkali started shouting loudly saying "Why are you saying that to me; why would I be worried?" …"
Marie Green wrote that on that occasion she found the Claimant frightening, aggressive and very intimidating. She would prefer him not to use her services.
"38. … The claimant accepted that he was annoyed at the conversation with Mr Cotter. He explained that they had had a previous conversation about Syria and the claimant had told Mr Cotter about what the German journalist had said. He said "He thought I was promoting what the German said". The claimant said he had told Mr Cotter that the journalist had said that "Those guys are very good fighters. They're not worried and they've actually managed to run the country in time." The claimant said he was annoyed on 19 October about this because he had been accused. Mr Cotter had told him he was promoting IS. He said Mr Cotter said to him, "Are you still promoting IS Daesh?" Ms Keppie [from HR] suggested it may have been a joke. The claimant said he did not take it as a joke. He took it seriously and Mr Cotter made him angry."
The Judgment of the ET
"On the evening of 19 October 2015 Rusk Cotter approached the claimant in the canteen and unexpectedly said "Are you still promoting IS/Daesh". …"
Equality Act 2010
"The following characteristics are protected characteristics -
religion or belief;
"(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
"(1) A person (A) harasses another (B) if -
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of -
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B."
"20. Relevant events began in October 2015. Early in that month, the claimant had a conversation with another driver, Mr Cotter. The claimant reported to Mr Cotter comments by a German journalist about ISIS which could reasonably be understood as being of a positive nature. The claimant told Mr Cotter that the journalist had said that ISIS were very good fighters and they had managed to run the country in time. On 19 October 2015 the claimant had a heated discussion with Mr Cotter in the area of the canteen. The conversation resulted from the earlier comments from the claimant about what he had heard the German journalist say. We find that Mr Cotter said to the claimant "Are you still promoting IS/Daesh". The claimant's evidence on this point is supported by the statement made by Mr Cotter shortly after the relevant events. We find that Mr Cotter made the remark because of the previous conversation. There is no evidence that Mr Cotter made the remark because of the claimant's race or religion.
68. … On the evening of 19 October 2015 Rusk Cotter approached the claimant in the canteen and unexpectedly said "Are you still promoting IS/Daesh?" …
69. We have found that Mr Cotter did make the alleged comment. Had the comment been made in isolation, without the context about which we have heard from the claimant, we may have concluded that the claimant had proved facts from which we could have concluded that it was an act of religious discrimination, given the claimant is Muslim. If the comment had been made without the context, and the speaker knew the claimant was Muslim, it would have appeared that the speaker was linking the claimant's religion to the possibility of him promoting ISIS. However, the context in which Mr Cotter made this remark was that it followed a conversation where the claimant had informed Mr Cotter about positive sounding comments from a German journalist about ISIS. Mr Cotter had understood that, by making these comments, the claimant was promoting ISIS. Given the context, we conclude that the claimant has not proved facts from which we could conclude that the respondent treated him less favourably because of his religious belief. Also, the claimant has not proved facts from which we could conclude that the remark was made because the claimant was of Moroccan national origin. The complaint of direct race and/or religious discrimination in relation to this particular allegation, therefore, fails.
82. We found that Mr Cotter did make this remark. However, for reasons we explained in relation to the complaint of direct discrimination, in the context it was not related to religious belief. There is no evidence it was related to race. We conclude that it was unwanted conduct. We are not satisfied it had the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant but would have accepted that it had such an effect. However, given our conclusion that, in the context, the remark was not related to religious belief, this complaint fails. There is no evidence it was related to race so the complaint of harassment related to race also fails."
The Grounds of Appeal
"The only basis for rejecting the Claimant's claim in the circumstances was the Tribunal's conclusion that the comment did not relate to race or religion. The proposed ground of appeal challenges this conclusion in circumstances where the Tribunal appears to have reached precisely the same conclusions in paragraphs 69 and 82 without any apparent recognition of the wider test in s.26 of the EA 2010 as compared with s.13. Section 26 involves no comparison and imposes a wider connection test than s.13. It is argued that the findings at paragraph 82 and the Tribunal's conclusion may reveal an error in its approach, and a failure to have regard to the wider context relevant to a decision under s.26."
"3.1. The Employment Tribunal erred in law at paragraph 82 of the Decision in that they did not apply the correct legal test in relation to harassment contrary to s.26 Equality Act 2010.
3.1.1. The test for harassment under s.26 Equality Act 2010 is different to the test for direct discrimination under s.13. The s.13 test is a comparative exercise and requires an inquiry into the cause of the less favourable treatment: "because of a protected characteristic" (emphasis added).
3.1.2. In contrast, the test at s.26 does not require a comparison and is a wider test: "related to a relevant protected characteristic" (emphasis added).
3.1.3. The Employment Tribunal erred in law by relying on its earlier reasons on the complaint of direct discrimination (paragraph 69) in dismissing the complaints of harassment related to race and religion at paragraph 82.
3.1.4. It therefore failed to have regard to or inquire more widely into the context of the unwanted conduct and its relation to either of the protected characteristics of race or religion as required by s.26 Equality Act 2010."
It is further said that the ET "failed, inter alia, to deal with" seven listed matters. These included at paragraph 3.1.5:
"a. The reason why Mr Cotter had the first conversation with the Appellant (i.e. the one that preceded that on 19 October 2015);
b. The reason why Mr Cotter made the remark on 19 October 2015. His handwritten statements for the disciplinary proceedings do not explain that;
c. The reason why there was no proper witness statement from Mr Cotter or why he was not called to give evidence to the Employment Tribunal (despite the fact that he was still working for the Respondent at the time of the Employment Tribunal hearing);
e. The fact that Mr Cotter apologised for his remark on 19 October 2015 (as set out or recorded in his handwritten statements). The Employment Tribunal does not appear to have looked into this or attached any significance to it. They do not appear to have investigated why Mr Cotter felt it appropriate to apologise. So far as the Appellant is aware, Mr Cotter was not subject to any sanction in relation to his conduct to the Appellant."
"5. The Employment Tribunal's conclusion that Mr Cotter's remark was neither related to religious belief nor race was plainly correct and/or a permissible finding …"
for reasons which included:
"5.1. By his oral evidence before the Tribunal, the Appellant expressly confirmed that Mr Cotter's comment to him about IS [Islamic State or Daesh] resulted from the Appellant's previous comments to Mr Cotter about IS in their earlier conversation. Those comments, as found by the Tribunal, could reasonably have been viewed as being of a positive nature.
5.2. The finding of the Tribunal at paragraph 20 of its Judgment that Mr Cotter made his remark because of his previous conversation with the Appellant is therefore unimpeachable.
5.3. Other evidence relevant to the Tribunal's assessment of Mr Cotter's comment was:
5.3.2. The fact that Mr Cotter had immediately sought to backtrack from his comment and explain himself when challenged by the Appellant, together with the fact that Mr Cotter apparently and readily apologised for his comment.
"Unwanted conduct 'related to' a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic."
The EqA is concerned with whether the conduct is "related to" a protected characteristic.
"100. In our judgment section 26 of the Equality Act 2010 requires the employment tribunal to focus upon the conduct of the individual or individuals concerned and ask whether their conduct is associated with the protected characteristic …"
"(3) Was the unwanted conduct related to a relevant protected characteristic?"
However, the further observations of Underhill J in paragraph 11 of Dhaliwal are unaffected by the wording of the legislation and are of importance. The EAT held:
"11. The tribunal's eventual decision may often depend on what are, in practice, undifferentiated factual issues which cover more than one element in the analysis. Nevertheless, it will be a healthy discipline for a tribunal in any case brought under this section (or its equivalents in the other discrimination legislation) specifically to address in its reasons each of the elements which we have identified, in order to establish whether any issue arises in relation to it and to ensure that clear factual findings are made on each element in relation to which an issue arises."
"21. In Grant at 1401, paragraph 43, again, the importance of the particular circumstances were emphasised there by Elias LJ: "for example, it will generally be relevant to know to whom a remark is made, in what terms, and for what purpose". We therefore accept the Respondent's submission that context is everything. It is for a Tribunal who hears the witnesses, whose job it is to determine the facts, and who considers the submissions made to it in the light of having heard those witnesses and determined those facts, to decide what the context is and to contextualise what has taken place. We would add that it may be a mistake to focus upon a remark in isolation. A Tribunal is entitled to take the view, as we see it, that a remark, however unpleasant and however unacceptable, is a remark made in a particular context; it is not simply a remark standing on its own.
23. … we accept that the cases require a Tribunal to have regard to context. Words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally a Tribunal might conclude that in consequence the words themselves are that upon which there must be focus and that they are discriminatory, but a Tribunal, in our view, is not obliged to do so. The words are to be seen in context; …"
"20. … We find that Mr Cotter made the remark because of the previous conversation. There is no evidence that Mr Cotter made the remark because of the claimant's race or religion."
The ET made a similar observation in relation to those unchallenged facts in paragraph 69:
"69. … If the comment had been made without the context, and the speaker knew the claimant was Muslim, it would have appeared that the speaker was linking the claimant's religion to the possibility of him promoting ISIS. However, the context in which Mr Cotter made this remark was that it followed a conversation where the claimant had informed Mr Cotter about positive sounding comments from a German journalist about ISIS. Mr Cotter had understood that, by making these comments, the claimant was promoting ISIS. Given the context, we conclude that the claimant has not proved facts from which we could conclude that the respondent treated him less favourably because of his religious belief. …"
"82. … given our conclusion that, in the context, the remark was not related to religious belief, this complaint fails. There is no evidence it was related to race so the complaint of harassment related to race also fails."
The ET were entitled to take into account the context in which the offending words were spoken. Whilst another ET may have reached a different conclusion, this ET applied the correct test for whether the conduct complained of constituted harassment within the meaning of EqA section 26.