Background

Anis Ali, a Muslim, worked for the Heathrow Express which was at the relevant time run by the first respondent, Heathrow Express Operating Company Ltd. The second respondent, Redline Assured Security Ltd, was responsible for carrying out security checks at the airport and the Heathrow Express stations. The checks involved creating and leaving suspicious objects to test how security officers responded to them, and in August 2017 it carried out a test using a bag containing a box, some electric cable and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic. Subsequently, the Operating Company sent an e-mail reporting on the results of the test and including images of the bag and the note to a group of employees – including Mr Ali.

Mr Ali complained to an employment tribunal that Redline’s conduct had amounted either to direct discrimination against him or to harassment by reference to his religion as defined in the Equality Act 2010 and that because Redline had acted as the Operating Company’s agent both respondents were liable to him for their conduct. The lower tribunal concluded that their conduct had amounted neither to direct discrimination nor to harassment by effect because, in using that phrase, Redline had not been seeking to associate Islam with terrorism but had been using it in the context of recent incidents where the phrase had been used: Redline’s security team “were not seeking to associate Islam with terrorism – instead they were seeking to produce a suspicious item based on possible threats to the airport” [ET judgment at 55]. In Ali v Heathrow Express Operating Company Ltd & Anor (Harassment) [2022] EAT 54, he appealed against the rejection of his harassment complaint on the grounds that it was either perverse or insufficiently reasoned.

The judgment

It was argued for Mr Ali that religious discrimination could take the form of stereotyping and, in particular, the stereotyping of Muslims as likely terrorists “by false association with acts of terrorism carried out by a tiny number of extremists” [13] and that just because the phrase “Allahu Akbar” had been used by extremists in a small number of terrorist attacks did not make it legitimate to use it to reinforce the suspicious nature of a package [17] and the lower tribunal’s conclusion on the point had been perverse  By using that phrase, Redline’s security team were obviously linking Islam with terrorism [18], Mr Ali could not have known what the team’s intention was and, in any case, its motive was irrelevant.

For the respondents, it was argued that “regrettably, the phrase had been used in connection with recent terrorist attacks” and it had been legitimate for Redline to draw on known threats and matters connected with previous terrorist incidents to make the package appear suspicious.  Further, Mr Ali had not been on duty that day,  it could not be said that the exercise was particularly directed at him, and he learned of it only from the e-mail reporting the outcome of the test [27]. The perversity hurdle was only surmounted if no reasonable tribunal, applying the correct legal test, could have reached the conclusion that the lower tribunal had reached; and the EAT concluded that that hurdle had not been surmounted in this case.

It had been argued for Mr Ali that the use of “Allahu Akbar” had been particularly insensitive and offensive to him, not merely because it referenced Islam but because of its sacred nature and significance. The EAT did not accept that it had been perverse not to regard the Redline’s conduct as amounting in itself to the stereotyping of Muslims generally as terrorists or terrorist sympathisers; however:

“we do understand that he also says that, because such stereotyping is a significant and serious blight on the lives of Muslims, the use of these words in this context was particularly charged for him, more than, say, the use of an animal-rights slogan co-opted by some terrorists would be for a vegan.  However, we cannot say that these features point to the conclusion that the tribunal could only properly have found that the claimant’s perception that the conduct had the effects on him of the kind referred to in section 26(1)(b) was a reasonable one” [59].

As to the argument that the employment tribunal’s reasons for its findings had been inadequate:

“there is no reason at all to suppose that the tribunal’s failure to mention these propositions – that the vast majority of Muslims do not behave in the manner of the terrorist extremists, or support them, that it is wrong to tarnish Muslims generally by using their sacred terms in association with possible terrorist acts, and that law-abiding Muslims would be deeply offended by the association of their religion with terrorism – was because it had failed to consider them, or took issue with them as such.  Their nature is such that the tribunal did not need to confirm if it regarded them as uncontroversial as such” [67].

In terms of the relevant law, the employment tribunal had set out all the relevant facts [72]

The EAT concluded at [74]:

“We appreciate the strength of feeling that the claimant plainly has about this matter, and about matters more generally concerning the treatment of Muslims in society. But the task of the tribunal was to consider whether the conduct of the second respondent of which he complained amounted to harassment as that term is defined in section 26 of the 2010 Act. The EAT can only interfere with its decision if it erred in law. We have concluded that the tribunal’s decision was neither in the legal sense perverse nor insufficiently reasoned.”

Both grounds failed and the appeal was dismissed [74].