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The importance of context - in harassment and discrimination claims

When is harassment harassment? And when is it something other?

An interesting case over on our ICAEW Legal Alerts caught our eye.

Two employees ‘had a workplace conversation’ on the subject of ‘an article putting forward positive views of Islamic State’, says the piece.

One was ‘a Moroccan Muslim’.

‘A few days later,’ says the Legal Alert, ‘the same colleague asked him: “Are you still promoting IS?” He took offence and there was a fracas. The employer carried out an investigation and the employee was ultimately dismissed for gross misconduct. He claimed harassment.’

What is harassment?

What’s helpful about this account is that it draws attention to the issue of context: how important the context can be to understand whether something has been harassment because of who you are; or a different kind of conflict.

‘There is harassment’, says the Legal Alert, ‘if an employee is subjected to unwanted conduct relating to a protected characteristic such as their age, disability, gender reassignment, marriage and civil partnerships, race, religion or belief, sex and sexual orientation.’

And the ruling in this case found this wasn’t what had happened here.

Context deemed key

‘The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal finding’, says the Legal Alert.

They agreed that the second employee’s ‘question was not related to the employee’s religion or race (or any other protected characteristic) but was asked because of his previous conversation. The colleague would have asked the same question of a non-Muslim employee with whom he had had the same conversation about IS’.

So, the context was deemed key.

‘The claim was therefore defeated because of the context in which the question was asked. The EAT made it clear that, in another context, such a question may well have amounted to harassment – or even direct discrimination.’

Read the Legal Alert in full.

August 2018