United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 66_94_2406

Appeal No. EAT/66/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24th June 1994

HIS HONOUR JUDGE D M LEVY QC

MRS E HART

MISS D WHITTINGHAM

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MR S S DHANJAL          APPELLANT

BRITISH STEEL PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M S GILL

(Of Counsel)

Mr K Drabu

Commission for Racial Equality

Elliot House

10 Allington Street

London

SW1


 


HIS HONOUR JUDGE LEVY QC: On the 19th July 1991 British Steel gave to Mr S S Dhanjal notice terminating his employment on the 11th October 1991.

Following this termination of his employment Mr Dhanjal commenced proceedings in an Industrial Tribunal on 9th January 1992, alleging unlawful discrimination among the grounds for which he was dismissed.

There was a hearing before the Industrial Tribunal at Birmingham of his complaint from the 28th-30th September 1992, on the 12th January 1993, from the 10th-12th March 1993 and on the 1st and 2nd September 1993. It was an exceptionally experienced Tribunal and the Reserved Decision was sent to the parties on the 16th December 1993. The unanimous decision of the Tribunal was:

"the applicant was not unfairly dismissed by the respondent.

the respondent did not discriminate on racial grounds against the applicant contrary to Section 1(1) of the Race Relations Act 1976 because it has satisfied us that its requirement that all employees at its Shelton Steel Mill working in specified areas must wear a protective helmet (hard hat) and this was justifiable in accordance with Section b (ii) of the above Section."

Mr Dhanjal, who is a Sikh, complains very much of the decision and wishes to appeal against it. The primary grounds for the appeal are thus set out in the Notice of Appeal:

"5. The appellant appeals on the following question of law:

(i) Whether the Tribunal were wrong in directing themselves that on a policy issue concerning Health and Safety, they were entitled to find that it was paramount to anti-discriminatory considerations.

(ii) Whether the Tribunal were wrong in failing to perform a balancing exercise on the facts of this case."

Mr Gill who has appeared persuasively for the Appellant on this preliminary hearing says "that no balancing act was done at all by the Tribunal" and in that regard points us to paragraph 15 and especially paragraph (ii) of that paragraph of the Tribunal's findings. I will read out (i), (ii) and a passage of paragraph 18:

"15 As a result our findings are as follows.

(i) The respondent's change of policy on the wearing of hard hats dates from June 1985 following a serious accident at Shelton which led to new recommendations for the compulsory wearing of hats, except for Sikhs.

(ii) In 1986 these recommendations were revised so as to cancel the original exemption for Sikhs. [and then this is a sentence of which Mr Gill particularly complains] We see no grounds to suggest that a balance between safety and non discrimination requirements should be struck to meet the cultural needs of the applicant. Wherever these 2 considerations clashed, it was clear to the safety officers of the respondent and to the Factory Inspectors that safety considerations must be paramount. For the respondent it was essential they avoid any danger of prosecution for failing to carry out the requirements of the 1974 Health and Safety at Work Act. In the absence of any specific exception from that Act for steel works similar to that granted to Sikhs working on construction sites in the building industry we agree that safety requirements must prevail over the non discriminatory requirements of the Race Relations Act."

and finally, in paragraph 18:

"18 In summary our unanimous decision is -

(1) . . .

(2) that the respondent's requirement of the applicant to wear a hard hat in certain areas was not indirectly discriminatory;

(3) that the respondent has satisfied us that their reason for that requirement was the safety of their work force and that this was fully justifiable on the balance of probabilities; irrespective of race in accordance with Section 1(1)(b)(ii) of the Race Relations Act, 1976."

Mr Gill, who did not appear before the Tribunal below, tells us that the decision of Peter Gibson J. and colleagues, in Singh v. British Rail Engineering Limited [1986] ICR 22 was cited below. In that case in dismissing an appeal Peter Gibson J. and his colleagues said:

"that the industrial tribunal were justified in taking into account both the risk of injury and the possibility of ensuing liability of the employers if the applicant did not wear protective headgear, even though his objection was based on genuine religious grounds, and the fact that the requirement would be more difficult to enforce if an exception was made for him; that whether a discriminatory requirement was justified was a question of fact for the industrial tribunal since the tribunal's conclusion was supported by the evidence its decision that there was no unlawful discrimination was not perverse."

Mr Gill has referred us to a passage in the judgment of Peter Gibson J at page 27B which reads as follows:

"It seems to us that it would be remarkable if conscientious employers, aware of a real risk to their employee in the place of work they provide for him, and aware that they can eliminate or reduce that risk by insisting on a safety requirement, are precluded by law from such insistence. We accept that for the reasons given by Mr Goudie the chances of an employee or his personal representative suing successfully for damages in the event of an accident are not high because of the defences open to the employers that having provided the protective headgear and urged that it be worn, it has not been in reach of its duty of care and that the damage to the employee was not caused by the breach. But we find ourselves unable to say that there is only a fanciful (to use Mr Goudie's term) possibility that the employers will be held liable in the particular circumstances that they had knowingly exposed an employee whom they themselves believe to be inadequately protected to a real risk known to them. As for criminal liability under section 2(1) of the Health and Safety at Work etc. Act 1974, we think that the industrial tribunal was right to find significance in the fact that the employers' health and safety officer had been unable to obtain an assurance from the Health and Safety Executive as to their position if they permitted the applicant to work without protective headgear. Mr Goudie has laid stress on the qualification on the statutory duty of an employer to ensure the health, safety and welfare at work of his employees, viz. `so far as is reasonably practicable.' It is of course arguable, as Mr Goudie suggests, that it is not reasonably practicable to insist on a safety measure with which the employee for genuine religious reasons cannot comply; but the contrary is also arguable, as the absence of an assurance from the executive suggests."

Mr Gill complains that here the Tribunal has not expressly done the balancing test which is suggested in the paragraph of Peter Gibson J, as he then was, as there suggested. In our judgment this is nit-picking by Mr Gill. This case was cited below and it is clear to us beyond peradventure that the Tribunal below has made a proper balancing test before saying, as they did in paragraph 15(ii), where the balance of the scales came down.

It seems to us that this is an appeal where the findings of fact by the Tribunal were fully justified on the evidence which they heard and that there is no arguable point of law which arises in the appeal. We have of course a great deal of sympathy for Mr Dhanjal but we see no reason to allow this appeal to go any further.

In these circumstances we dismiss the appeal.