A Muslim employee who worked on the Heathrow Express train service has lost his appeal following a tribunal decision that the use of the words ‘Allahu Akbar’ placed on a fake terrorist bomb did not amount to direct discrimination.
The Employment Appeals Tribunal heard that Redline Assured Security Limited was responsible for carrying out security checks at Heathrow Airport, including the Heathrow Express stations there. In particular, this involved creating and leaving suspicious objects to test how security officers responded to them.
On 22nd August 2017 it carried out a test by concealing a carrier bag containing a box, some electric cabling and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic.
It was not in dispute that this is an important and significant phrase for Muslims, which may be used many times a day in the context of religious devotion. The tribunal found that regrettably, it was a phrase that has been used in connection with terrorist attacks in 2017 and beyond.
The claimant in this appeal, Mr Anis Ali, who is a Muslim, was among a group of Heathrow Express employees who were circulated with an email reporting on the results of the test and which included images of the bag and the note.
Mr Ali complained to the employment tribunal that the conduct of Redline Assured Security amounted to either direct discrimination against him or harassment of him. The tribunal reached a decision in December 2020 rejecting these points. Mr Ali appealed the decision on solely the harassment point at the Employment Appeals Tribunal in March 2022.
His first ground of appeal was that:
(a) While it is true that a number of terrorist atrocities have been carried out in recent years by extremists who claim to be Muslims, the vast majority of Muslims do not behave this way or support their actions;
(b) It is wrong to tarnish the vast majority of Muslims as terrorists or terrorist sympathisers through using their sacred terms in association with terrorist acts. It is wholly understandable that law-abiding Muslims, including the claimant, are deeply offended by the association of their religion with terrorism;
(c) The tribunal’s statement at [55] that [Mr Ali] should have understood that, in adding the phrase Mr Rutherford’s team were not seeking to associate Islam with terrorism, is clearly perverse. By using the sacred phrase to make the bag appear more suspicious they were clearly associating Islam with terrorism;
(d) The idea that a religious phrase, in itself, makes a bag more suspicious is going to be offensive to adherents of that religion. The perpetuation of stereotypes of Muslims in this way will not aid the fight against terrorism. It is divisive and demonises and alienates Muslims;
(e) It was not necessary for the purposes of the test to have such a note inside the bag. Other ways could have been found to make the threat credible, which did not offend the followers of a major world religion.
First Ground of Appeal
The barrister representing Heathrow Express, Mr Michael Salter, said that whilst regrettably the phrase had been used in connection with recent terrorist attacks it was legitimate for Redline to have drawn on known threats and matters connected with previous terrorist incidents to make the package appear suspicious. Further, he argued, the tribunal made other relevant contextual findings, including that Mr Ali was not on duty that day, that it could not be said that the exercise was particularly directed at him, and that he learned of it only from the email reporting the outcome of the test.
In handing down its decision on 7th April 2022, the Appeals Tribunal board comprising of His Honour Judge Auerbach, Mr D Bleiman and Miss SM Wilson CBE dismissed the appeal.
The tribunal considered that Mr Ali should have understood that, in using this phrase, the Redline was not seeking to associate Islam with terrorism, but, in the context of recent incidents in which the phrase had been used by terrorists, had used it in order to produce a suspicious item based on possible threats to the airport.
The tribunal concluded:
We appreciate the strength of feeling that [Mr Ali] 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 [Redline] 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.
As both grounds fail, the appeal is dismissed.
Conclusion of the Employment Appeals Tribunal dated 7th April 2022
The full Judgment can be read here: https://www.bailii.org/uk/cases/UKEAT/2022/54.html
Case Details
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Case No: EA-2021-000353-JOJ
Hearing Date: 10th March 2022
Before :
HIS HONOUR JUDGE AUERBACH
MR D BLEIMAN
MISS SM WILSON CBE
Between:
MR ANIS ALI
Appellant
– and –
(1) HEATHROW EXPRESS OPERATING COMPANY LIMITED
(2) REDLINE ASSURED SECURITY LIMITED
Respondents
Nicholas Toms (instructed by RMT Legal Department) for the Appellant
Michael Salter (instructed by Eversheds Sutherland (International) LLP) for the First Respondent
Mark Williams (instructed by DWF LLP) for the Second Respondent
Mouse in the Court 