Employment Tribunal (ET):

Note that as an employment tribunal case, this is not binding authority. ET cases may be persuasive on other tribunal decisions, but unlike those courts higher in the system (EAT, CoA, Supreme Court), they do not have to be followed by other courts and therefore the outcome is only indicative of how a similar case might be treated.

In their evidence, the director admitted that they may have unconscious bias against Muslims. The claimant argued that therefore of this admission, and the fact the director knew the claimant was a Muslim, this should lead the ET to conclude that the their treatment was related to religion.

In response to this point, the ET commended the director’s honesty. Everyone has unconscious biases, the ET went on, and where potential unconscious biases are not recognised or it is not willingly acknowledged that they might be present, it is more likely that they will influence decisions and actions. Instead, the ET found that what drove the director to speak to the claimant on the day in question was because they genuinely believed that the claimant was in breach of the respondent’s policies, and that this escalated because of the claimant’s reaction.

The ET found that as the director had challenged others on this same point, the claimant was not singled out because of religion. This was because (according to the ET) “not everything that happens in the workplace to a Muslim worker will be related to religion”. This finding was supported by the fact the claimant admitted that religion was not discussed during the altercation, nor was it given as a reason for the claimant to have their sleeves down – on the day, the claimant said that it was because they believed they were in a non-clinical area of the hospital.

Overall, whilst the ET held that both parties did not handle the altercation well, the reason for the director’s behaviour was because they wanted the claimant to comply with the policy. Therefore, it could be neither harassment nor direct discrimination, as the treatment was not ‘because of’ the claimant’s religion. The claimant, therefore, lost all their claims.