No, according to the case of Ali v Heathrow Express Operating Company Ltd (1) and Redline Assured Security Ltd (2)
The Claimant, worked for Heathrow Express Operating Company Ltd (Heathrow). From time to time Redline Assured Security Ltd (Redline) carried out security checks at Heathrow airport and Heathrow Express stations. One such test in 2017 involved a bag containing a box, electric cables and a piece of paper with the wording “Allahu Akbar” written in Arabic.
The Claimant was a security guard but was not involved in the test. When he received a report about it later, he complained that this conduct amounted to harassment by reference to his religion. It was Heathrow and Redline’s position that whilst the words used were regrettable, the phase had been used in a number of high profile terrorist attacks that year and it was therefore legitimate to include the phase in order to make the package look more suspicious.
After hearing the evidence, the tribunal concluded that neither Redline nor Heathrow’s conduct amounted to direct discrimination or harassment because by using the phrase “Allahu Akbar”, they did not have the intention of associating Islam with terrorism. it was not in all the circumstances reasonable for the Claimant to perceive the conduct as having an effect falling within s26(1)(b) Equality Act 2010 and he should have understood that using this phrase was not seeking to associate Islam with terrorism but was in the context of recent incidents where the phrase had been used.
This view was supported at the Employment Appeal Tribunal where it was concluded that the decision was neither legally perverse nor insufficiently reasoned.
Conclusion
Whilst this is a very fine line, this case does serve as a reminder that just because someone feels that they have been harassed and discriminated against, does not always mean that they have been. However, on a note of caution, this case was decided on a very specific set of facts (not least of which the employers legitimate aims to counter terrorism as an airport and transport hub), the outcome may have been different if sufficient legitimate alternative explanations for the conduct concerned were not available.
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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