|At the Tribunal|
|On 30 June 2006|
HIS HONOUR JUDGE PETER CLARK
DR S R CORBY
SIR A GRAHAM KBE
Transcript of Proceedings
|For the Appellant||MS C McCANN
London Discrimination Unit
Unit 46 Eurolink Business Centre
49 Effra Road
|For the Respondent||MS J EADY
Messrs Eversheds LLP
115 Colmore Row
Religious discrimination – application of Igen v Wong to 2 stage Burden of Proof. Meaning of 'facts' and Respondent's explanation at Stage 1. What ET is to take into account at Stage 1 in determining whether a prima facie case is made out.
HIS HONOUR JUDGE PETER CLARK
EAT Case Management
(1) that the Claimant's dismissal was an act of direct and indirect religious and racial discrimination by both Respondents (West Coast Trains and Mr Adams)
(2) that the rejection of his appeal against dismissal was an act of direct racial discrimination or religious discrimination by the First Respondent (West Coast Trains)
(3) that Mr Adams aided and abetted West Coast Trains in directly discriminating against him by way of harassment contrary to the Race Relations Act 1976 and the RBR. The complaints of harassment are set out in paragraphs 12, 13 and 14 of the Originating Application and date from early December 2003.
(4) Additionally, by way of amendment permitted by the Carstairs Tribunal, the Claimant added a complaint of victimisation in respect of the decision to dismiss his internal appeal against his dismissal.
Burden of Proof
"9. The Tribunal did omit to refer to regulation 29 regarding the burden of proof. However, the Tribunal was well aware, for example by reference to Ms McCann's written closing submissions at paragraphs 11 and 12, that the burden set out in that regulation was in substance the same as the burden set out in section 54A Race Relations Act 1976. The Tribunal had taken some care to consider the case law relevant at the time of the hearing and cited the relevant authorities at paragraphs 51 -54 of its reasons."
"29. Burden of proof: Employment Tribunals
(1) This regulation applies to any complaint presented under regulation 28 to an employment tribunal
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent –
(a) has committed against the complainant an act to which regulation 28 applies or
(b) is by virtue of regulation 22 (liability of employers and principals) or 23 (aiding unlawful acts) to be treated as having committed against the complainant such an act,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act."
By Regulation 3(1)(a)
"(1) … a person (A) discriminates against another person (B) if –
(a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons;"
And by Regulation 6(2)(d)
"(2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Great Britain, to discriminate against that person –
(d) by dismissing him,"
By Regulation 3(3)
"A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
"7 That guidance received the express approval of the House of Lords in Glasgow City Council v Zafar  ICR 120. In that case, at p 126, Lord Browne-Wilkinson acknowledged that remarks which he made … in the Employment Appeal Tribunal in two earlier cases, Khanna v Ministry of Defence  ICR 653 and Chattopadhyay v Headmaster of Holloway School  ICR 132, went too far and should not be followed. Thus, in Chattopadhyay it was said, at p 137:
'the law has been established that if an applicant [claimant] shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds the industrial tribunal [ET] should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation;'
However, it might be thought that, with the introduction of the new provisions … those remarks are now consistent with the discrimination Acts as amended."
(1) Towards the end of the Claimant's training period in August 2003 he was taken on a station visit to London Euston where he was due to work. He met Mr Loveland, a manager employed by the Respondent as Retail Team Leader, who raised issues about his beard and hat, worn for religious reasons. Subsequently the Claimant was told by his trainers that he could wear a turban of the uniform colour prescribed by the Respondent's uniform code. That was acceptable to the Claimant, who felt that his trainers had dealt with the matter sensitively. Mr Loveland had also asked the Claimant to trim his beard. (Reasons paragraph 15).
(2) On 22 August 2003, the day after the Claimant commenced work at Euston, Ms Deamer, regional manager, saw him and noted his beard. She sent Mr Adams an email headed 'Man with strange beard'. (Paragraph 16).
(3) In August 2003 Mr Adams had a discussion with the Claimant about the appearance of his beard (paragraph 18).
(4) In late August/early September 2003 Mr Adams asked the Claimant if he had to choose between keeping his beard or keeping his job, which would he choose. The Claimant stated he would keep his beard. The Employment Tribunal went on to find that both the Claimant and Mr Adams then reached agreement that the Claimant would keep his beard at a fist's length, which both men considered would be sufficient to keep it tidy (paragraph 20).
(5) On 9 September 2003, one of the Claimant's team leaders (Ms Hills) completed a 'New Starter Comment Form' about the Claimant, on which she noted that the Claimant had needed to take a "'Stand on the 'beard'" issue (paragraphs 19 and 21).
We would add that at paragraph 19 the Employment Tribunal refer to a dispute of fact between the parties as to whether further discussion about the beard issue had taken place in December, as the Claimant contended. However, the Employment Tribunal accepted the Respondent's evidence that it did not. The potential significance of that date, of course, was that RBR came into force on 2 December 2003.
(6) In September 2003 Mr Loveland again asked the Claimant to trim his beard, saying it was too long. The Employment Tribunal noted that Mr Loveland had denied making this comment but they preferred the evidence of the Claimant that it was said and that the Claimant had told Mr Loveland he had trimmed the beard but Mr Loveland would not listen (paragraph 24).
(7) Although there were a number of reminders regarding the beard we note the Employment Tribunal's conclusion that the matter was resolved by the end of September (paragraph 25).
(8) In late September or early October 2003 Ms Smit of the Respondent returned from holiday and commented that the Claimant's beard looked untidy. Mr Adams told her of the agreement reached and asked the Claimant then and there to demonstrate how he measured the length of his beard i.e. by holding it in his fist to ensure that it was at least one fist's length long. The Claimant contended and Mr Adams denied that the words used by Mr Adams were: 'Do your trick, the thing with your beard, check your length.' The Employment Tribunal accepted the Claimant's evidence that that remark was made by Mr Adams.
Additionally they found:
(9) The Claimant was given a copy of the Respondent's uniform standards at the start of his 6-month probationary period in June 2003. Those standards included matters of personal appearance, including hair. Beards were required to be neatly trimmed and smart. Turbans worn for religious reasons should be either black or navy blue (paragraph 13).
(10) The Respondent employs staff from many ethnic origins at Euston Station. There is a male Sikh employee whose religion prevents him from cutting or trimming his beard at all. He keeps his beard tidy, sometimes tying it up, in such a way as to make it look presentable and in keeping with the Respondent's uniform standards (paragraph 43).
"6 Although Mr Adams had discussed Mr Mohmed's beard with him, they had agreed that his beard needed only to be kept tidy and they also agreed that it would be kept to one fist's length. There was no concern expressed simply about the fact Mr Mohmed had a beard; indeed the Respondent allowed employees to have beards in the uniform code and employed a Sikh whose religion required him to have a beard which he was not permitted to cut or trim but who had kept his beard looking tidy so that it fulfilled the Respondent's uniform code. The evidence clearly suggested to the Tribunal that Mr Adams's only concern was to ensure that Mr Mohmed's appearance complied with the uniform code.
7 There was no suggestion before the Tribunal that Mr Mohmed was at actual risk of dismissal because he had a beard for religious reasons, for example before the regulations came into effect making such a dismissal unlawful. Indeed, when Mr Adams asked Mr Mohmed in either late August or early September which he would prefer to keep, namely his beard or his job, Mr Mohmed replying he would prefer to keep his beard, it was never suggested that, as a result of Mr Mohmed's response, his employment should be terminated."
(1) Whether the Employment Tribunal correctly applied the burden of proof regulations in Regulation 29 RBR in finding that the Claimant had not established a prima facie case at stage 1 of the Igen approach. This she described as her main point.
(2) Whether the Employment Tribunal failed to consider, at stage 1, the Respondent's delay in delivering answers to the Claimant's questionnaire, served under Regulation 33.
(3) Whether, notwithstanding the Employment Tribunal's Further Reasons, their reasoning in dismissing the relevant claim was inadequate, or non-Meek-compliant.
We shall take each head in turn.
Burden of Proof
Adequacy of Reasons