Appeal No. UKEAT/0682/05/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 June 2006
Judgment delivered on 30 August 2006

Before
HIS HONOUR JUDGE PETER CLARK
DR S R CORBY
SIR A GRAHAM KBE

MR M MOHMED	APPELLANT

WEST COAST TRAINS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS C McCANN
(Of Counsel)
Instructed by:
London Discrimination Unit 
Unit 46 Eurolink Business Centre
49 Effra Road
London
SW2 1BZ	
For the Respondent	MS J EADY
(Of Counsel)
Instructed by:
Messrs Eversheds LLP
Solicitors
115 Colmore Row
Birmingham
B3 3AL	

SUMMARY

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

1.	This appeal raises before the Employment Appeal Tribunal, not for the first time, an issue as to whether the Employment Tribunal correctly dealt with the statutory change in the Burden of Proof in discrimination cases, as explained by the Court of Appeal in Igen Ltd v Wong [2005] ICR 931.  The appeal is brought by Mohsin Mohmed, Claimant, against the Judgment of a Tribunal chaired by Mr C A Carstairs and sitting at London (Central).  The hearing took place on 12 – 14 October 2004.  The panel members met and deliberated in private on 15 and 27 October and promulgated their reserved judgment with Reasons on 7 January 2005.  They dismissed all of the Claimant’s claims brought against his former employer, the Respondent West Coast Trains Ltd.  A second Respondent, the Claimant’s manager David Adams, was dismissed from the proceedings by consent.  We note that the judgment in Igen was handed down on 18 February 2005, so that the Tribunal did not have the benefit of the Court of Appeal’s guidance in that case.  Nevertheless, they were referred to and considered the EAT guidance, slightly modified by the Court of Appeal in Igen, in Barton v Investec [2003] IRLR 332 (Reasons, paragraph 51).

EAT Case Management
2.	The appeal was first considered at the paper sift stage by HHJ Wakefield who, on 31 March 2005, stayed the appeal to allow the Employment Tribunal to consider and supply further reasons in light of paragraph 6 of the Claimant’s Notice of Appeal which contended, correctly, that the Employment Tribunal had failed to give reasons for dismissing one of his claims, namely that his dismissal by the Respondent was an unlawful act of discrimination on grounds of his religion or belief, and in particular whether consideration was given to the Burden of Proof provision contained in Regulation 29 of the Employment Equality (Religion or Belief) Regulations 2003 (RBR).  The Employment Tribunal provided their response under what is generally known as the Burns/Barke procedure on 26 May 2005 (the Employment Tribunal Further Reasons).

3.	Thereafter the appeal was next considered on paper by Bean J, who was of the opinion that the appeal had no reasonable prospect of success and directed, by letter dated 17 August 2005, that no further action be taken on it under EAT Rule 3(7).

4.	Dissatisfied with that opinion the Claimant exercised his right under Rule 3(10) to take the matter to an oral hearing before a Judge.  On 6 December 2005, having heard oral submissions by Ms McCann, who has appeared on behalf of the Claimant throughout, and in the absence of representations on behalf of the Respondent, in accordance with the usual practice at such hearings, Rimer J permitted the appeal to proceed to a full hearing with both parties present.

5.	Shortly before this matter came on for full hearing before this division on 30 June 2006 the case was considered again by HHJ Reid QC, who by order dated 19 June granted in part only the Claimant’s application to amend his Notice of Appeal and directed that the Chairman, Mr Carstairs, produce limited extracts from his notes of evidence taken at the hearing below.  Despite the short time-frame the Chairman has produced those notes as requested in time for the hearing.  We are grateful to him for his co-operation.  

6.	Before us Ms McCann renewed her application for permission to amend the Notice of Appeal in those respects refused by Judge Reid.  Ms Eady took a neutral stance.  In the interests of hearing full argument we permitted the outstanding amendments at paragraphs 6(ii) – (iv) inclusive.

The Claims
7.	The Claimant, by his Originating Application to the Employment Tribunal dated 29 April 2004, alleged that he had been employed by Virgin Trains (later corrected to West Coast Trains Ltd) as a Customer Services Assistant (CSA) from 4 June 2003 until his dismissal on 2 February 2004.  He there described himself as a Muslim of Indian origin.  The factual case was that his religious beliefs required that his beard be a minimum of one fist’s length (approximately 4 inches).  When interviewed for the CSA position in June 2003 he said that he was asked whether he would trim his beard.  The ‘beard issue’ persisted after he commenced employment.  We shall return to the examples relied on by the Claimant when examining the Carstairs Tribunal’s findings of fact.  Significantly, on the Claimant’s pleaded case, the beard issue was raised by the Respondent’s management into early December 2003.  It should be noted that the RBR came into effect on 2 December 2003.

8.	The Claimant set out his various causes of action at paragraphs 3 – 5 of the Particulars of his claim attached to his Originating Application.  Those claims, identified at a directions hearing held on 13 July 2004, were set out by the Carstairs Tribunal (Reasons, paragraph 1) as follows:

(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.

9.	Without wishing to appear unnecessarily pedantic, we think it would have been helpful if the Employment Tribunal, both at the earlier directions stage and then at the substantive hearing, had separated out each of the Claimant’s claims and considered them individually.  By doing so the Employment Tribunal at the final merits hearing was more likely to focus on the different ingredients of each cause of action.  Thus, in the present case, by ruling on the first of the issues identified above, dismissal as an alleged act of (a) direct and (b) indirect religious and (c) direct and (d) indirect racial discrimination, the Carstairs Tribunal, Reasons paragraphs 71 – 75, ran together claims (a) and (c) as we have identified them and failed to rule expressly on claim (a).  Hence Judge Wakefield’s Burns/Barke direction at the initial paper sift stage in this Tribunal.

10.	This appeal is concerned only with the Employment Tribunal’s rejection of the Claimant’s claim of direct discrimination on the grounds of his religion or belief against the Respondent employer by way of dismissal (the relevant claim).  There is no appeal against the Employment Tribunal’s rejection of all his other claims.

11.	In her written skeleton argument for this appeal hearing (paragraph 23) Ms McCann suggested that Judge Wakefield was perhaps rather generous in permitting the Carstairs Tribunal an opportunity under the Burns/Barke procedure to provide reasons, absent in their substantive judgment reasons, explaining why they had rejected the relevant claim.  However, any question as to whether or not the Burns/Barke procedure was properly used in this case does not arise for consideration before us, there having been no appeal against Judge Wakefield’s order.  We shall therefore take into account the Carstairs Tribunal’s Further Reasons in adjudicating on this appeal.

Burden of Proof
12.	It has, as Peter Gibson LJ observed in Igen, paragraphs 6 – 13, long been recognised that the requirement for a Claimant to prove all the ingredients of a direct sex or race discrimination claim, as explained particularly by the Court of Appeal in King v Great Britain China Centre [1992] ICR 516 and the House of Lords in Glasgow City Council v Zafar [1998] ICR 120, has placed an undue burden on that party.  Hence, following decisions of the European Court of Justice, the principal Acts, the Sex Discrimination Act 1975 (SDA) and Race Relations Act 1976 (RRA) have been amended by statutory instrument (respectively, Sections 63(A) and 54A) to provide for an alteration in the burden of proof in such cases.  The application of those new provisions led to, first, the Barton guidance and, subsequently, amendments to that guidance by the Court of Appeal in Igen.

13.	In the present case, as we have observed, the Carstairs Tribunal directed themselves as to the Barton guidance (Reasons paragraph 51), their judgment having been promulgated shortly before the Court of Appeal judgment in Igen.

14.	The Employment Tribunal did not, in those initial Reasons, refer to Regulation 29 RBR, which effectively adopts the same approach to that found in Section 63A SDA and Section 54A RRA.  It follows that the Igen guidance applies equally to a claim of direct religious discrimination.  In their Further Reasons the Carstairs Tribunal state:

“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.”

15.	We accept that the relevant, pre-Igen authorities, including Barton are there set out.  We have been shown Counsel’s written closing submissions below and it is clear that, at paragraphs 11 – 12, Ms McCann correctly submitted that the new burden of proof provisions extended to claims of direct religious discrimination under RBR.
 
16.	What emerged during the course of oral argument before us was a real and important issue as to how the new burden of proof provisions should be applied.  Before considering that issue we should first set out the material provisions applying to the relevant claim; first Regulation 29 RBR.

“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.”

17.	The ingredients of unlawful direct religious discrimination in this case are to be found in Regulations 3(1)(a) and 6(2)(d)

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.”

18.	Thus, unlawful direct religious discrimination follows the same statutory pattern as in a case of unlawful direct race or sex discrimination.

19.	Turning then to the construction issue raised in the present case, the rival contentions of Counsel may be summarised in this way.  Ms McCann submits that the application of Regulation 29 involves the 2-stage process identified in Igen.  At the first stage, she argues, the Employment Tribunal is required only to look at the facts relied on by the Claimant; it is directed to disregard any non-discriminatory explanation for those facts advanced by the Respondent; it can however take into account an explanation by the Respondent which is consistent with the Claimant’s case of unlawful discrimination.  Having found a prima facie case of unlawful discrimination at stage 1, the burden then shifts to the Respondent to provide an explanation untainted by religion; if he fails to do so the claim must be upheld.

20.	Ms Eady takes issue with the first of those propositions; that the Employment Tribunal must look, at stage 1, only at the facts relied on by the Claimant.  She submits that it is for the Claimant to prove those facts; if evidence led by the Respondent is accepted in preference to that of the Claimant then the fact is not proved.  Further, the Tribunal is entitled to look at the whole of their primary findings of fact at the first stage.  

21.	We prefer the submission of Ms Eady.  Looking at the words of Regulation 29 it is for the complainant to prove facts.  He does so only where the ‘fact’ in question is either admitted or evidence led by the Respondent on that point is rejected.  If the Claimant’s evidence is rejected he has not proved that particular fact.  Further those facts, we think, must be viewed in the overall factual matrix as found by the Employment Tribunal.

22.	That brings us to the Respondent’s explanation.  It is clear from the wording of Regulation 29(2) that at stage 1 the Employment Tribunal must disregard any adequate (exculpatory) explanation advanced by the Respondent.  Further, Igen makes clear (paragraph 24) that at that stage the Employment Tribunal can take into account evidence of an unsatisfactory explanation by the Respondent to support the Claimant’s case; one example given is unsatisfactory conduct by the Respondent in response to the statutory questionnaire, a point to which we shall return in the present case.

23.	Thus, the bar, at the first stage, appears to be set quite low.  Once the Claimant has proved primary facts from which an inference of unlawful discrimination could be drawn (Ms McCann rightly emphasises the word ‘could’) then the burden shifts to the Respondent to provide an explanation untainted by religious belief, failing which the claim succeeds.  

24.	In our view the secret to understanding the true extent and effect of the change in the burden of proof lies in the observation of Peter Gibson LJ in Igen (paragraphs 6 – 7).  At paragraph 6 he sets out the well-known guidance contained in the judgment of Neill LJ in King (pp 528-9).  Then at paragraph 7 he said this:

“7   That guidance received the express approval of the House of Lords in Glasgow City Council v Zafar [1998] 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 [1981] ICR 653 and Chattopadhyay v Headmaster of Holloway School [1982] 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.”

25.	We draw attention to 2 propositions from the 5-point guidance given by Neill LJ in the present context.  The first is that where an Employment Tribunal considers the employer’s explanation to be inadequate or unsatisfactory it will be legitimate for the Employment Tribunal to infer that discrimination was on racial grounds.  It is that approach which was expressly endorsed by Lord Browne-Wilkinson in Zafar, disavowing his earlier approach sitting as President in Khanna and Chattopadhyay.  In other words, absent an adequate explanation the Tribunal may, not must, make a finding of unlawful discrimination.  The effect of the new burden of proof provisions, we think, is to restore the pre-King position as explained in the two earlier EAT judgments.  Secondly, Neill LJ said that it is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof.  Following the statutory changes that is precisely what is required.

26.	What flows from our analysis is a real, practical question for Employment Tribunals.  What is ‘fact’ and what is ‘explanation’, given the clear distinction between facts which a complainant must prove, from which an inference of unlawful discrimination could be drawn, and the Respondent’s exculpatory (as opposed to condemnatory) explanation, which cannot be taken into account in his favour at the first stage?  The distinction is important in the present case because the Carstairs Tribunal found that the relevant claim failed at the first stage.  In order to identify the distinction and to determine what facts were proved by this Claimant, we must turn to the Employment Tribunal’s findings.

The Findings
27.	Ms McCann does not seek to challenge this Employment Tribunal’s findings at paragraphs 8 – 45 of their Reasons.  Indeed, she submits that if the appeal were to succeed and the case be remitted for a rehearing by a fresh Employment Tribunal of the relevant claim, the new Employment Tribunal should be bound by the Carstairs Tribunal’s findings contained at paragraphs 8 – 45.  That, we have to say, strikes us as a particularly unsatisfactory basis for remission to a fresh Tribunal; far more desirable that any new Tribunal undertakes a complete rehearing.  However, it allows us to illustrate what we regard as the fallacy behind Ms McCann’s submission as to the meaning of ‘facts’ being those relied on by the Claimant, and to distinguish the Respondent’s exculpatory explanation, which is not to be considered at the first stage.

28.	Ms McCann draws attention to certain findings made by the Employment Tribunal in relation to the ‘beard issue’; her analysis is limited to facts on which the Claimant relies; we have added further findings made by the Employment Tribunal in relation to those events:

(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.

29.	Pausing there, in our judgment all of the above were findings of fact by the Employment Tribunal.  In particular they rejected the Claimant’s case that his beard was discussed in December 2003.  He therefore failed to prove that fact.  They found as fact that the beard issue was resolved by the end of September or early October (paragraph 25, repeated at paragraph 64).

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).

30.	Turning to the relevant claim, at paragraph 71 the Employment Tribunal identified, as the relevant comparator for the purposes of this claim, a hypothetical non-Muslim person.  The Employment Tribunal then go on to reject the claim based on dismissal on racial grounds, finding that no prima facie case of conscious on unconscious racial discrimination was made out (paragraphs 72 – 75).  However, they there omit to explain why the relevant claim failed.

31.	In their Further Reasons the Employment Tribunal made these findings in support of their conclusion that there was insufficient background evidence to suggest discrimination on the ground of religion or belief:

“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.”

32.	In these circumstances they found that the necessary prima facie case had not been made out such that the burden of proof transferred to the Respondent.

The Appeal
33.	We approach Ms McCann’s submissions in support of the appeal under 4 broad heads:

(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.
(4)	Perversity
We shall take each head in turn.

Burden of Proof
34.	The relevant claim required the Claimant to prove facts from which it could be inferred that in dismissing him the Respondent treated him less favourably than a hypothetical non-Muslim comparator on grounds of his religion or belief.  

35.	We note the Employment Tribunal’s finding (Reasons paragraph 38) that, at the dismissal meeting with Mr Adams on 2 February 2004, Mr Adams told the Claimant that he was terminating his contract because of his lack of enthusiasm.  The Claimant told Mr Adams that he was being dismissed because of his beard and appearance.

36.	Pausing there, we accept that it was not open to the Employment Tribunal to take into account, at stage 1, the Respondent’s exculpatory explanation for the Claimant’s dismissal, namely his lack of enthusiasm.  On the other hand, the facts relied on by the Claimant from which it is said an inference of unlawful discrimination could be drawn at stage 1 concerned, put loosely, the beard issue.

37.	If Ms McCann were correct in her approach, that the Employment Tribunal could only take account, at stage 1 the facts relied on by the Claimant, it would be necessary to ignore other material facts found on the basis of evidence led by the Respondent.  In particular that the Respondent applied a uniform standard across the workforce; that that policy covered beards and that the Respondent permitted beards provided they were neatly trimmed and smart, as exemplified by the Sikh employee who, in accordance with the tenets of his religion, neither cut nor trimmed his beard but kept it tidy so as to comply with the Respondent’s uniform standards.  Of particular significance was the Employment Tribunal’s factual finding that the beard issue had subsided by end September/early October 2003.

38.	Ms McCann submits that it was open to the Claimant to rely on facts relating to his treatment over the beard issue in support of his case that an inference of unlawful religious discrimination by way of dismissal could be drawn.  We accept that a continuing course of harassment could give rise to such inference, however we agree with Ms Eady that the Employment Tribunal’s finding that the beard issue did not arise after September/October 2003 is critical, we think in 2 ways.  First, it was not a course of conduct which continued from before RBR came into force up until dismissal; cf British Sugar Plc v Kirker [1998] IRLR 624.  Secondly, the fact that the issue was then resolved undermines the Claimant’s case that the beard issue had anything to do with his religion and everything to do with the Respondent’s concern to enforce its uniform standard.  It should not be forgotten that the RBR are, as with the sex and race statutes, concerned with less favourable treatment on the grounds of religion or belief.  On the primary facts found by the Employment Tribunal it was open to them to conclude that no inference of less favourable treatment could be drawn in circumstances where it was agreed that the Claimant could maintain his beard at one fist’s length, in accordance with his religion, provided it was tidy.  In considering the comparison with a hypothetical non-Muslim comparator it was open to them to note (Further Reasons, paragraph 6) that beards were permitted (as was the Claimant’s) and that the Sikh employee was not required to cut or trim his beard, he having kept it tidy, in accordance with his religion.  The Tribunal was thus entitled to find that there was no difference in treatment, let alone less favourable treatment, when comparing the Claimant’s case with that of a non-Muslim employee.  In other words, the beard issue had nothing to do with the Claimant’s religion and, having been resolved, had no bearing on the dismissal.   It was therefore unnecessary to require an explanation from the Respondent for the dismissal; no prima facie case of unlawful discrimination had been made out.

Questionnaire.
39.	At paragraph 45 of their Reasons the Employment Tribunal refer to certain information provided by the Respondent in answer to the Respondent’s questionnaires under both RBR and RRA.  The Regulation 33 Questionnaire was served on 19 May 2004; the Respondent’s reply is dated 24 September 2004.  The Employment Tribunal do not expressly comment on that delay in responding.

40.	Whilst we accept, following Igen paragraph 24, that it is open to an Employment Tribunal to draw inferences adverse to the Respondent arising from their conduct in relation to the statutory Questionnaire procedure at stage 1, we accept Ms Eady’s submission that on the facts of this case the Employment Tribunal were entitled to conclude that no adverse inference should be drawn from the Respondent’s delay in completing the response.  It was unnecessary to spell out that implicit finding.  We have read the Chairman’s notes of the cross-examination of Mr Adams in this respect.

Adequacy of Reasons
41.	Whilst the Employment Tribunal’s initial reasons were plainly inadequate to explain why the relevant claim was dismissed, we are satisfied that their Further Reasons do adequately explain their approach in law and the reasons why, on the facts found, they were not prepared to conclude that the Claimant had proved facts from which it could, in the absence of an adequate explanation, infer unlawful religious discrimination.

Perversity
42.	We are not persuaded that the Tribunal’s findings on the first stage of the Igen enquiry can be characterised as perverse in the sense explained by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634.

Conclusion
43.	It follows, in our judgment, that for the reasons given we find that no error of law is made out.  Consequently this appeal fails and is dismissed.