At the Tribunal | |
On 17 January 2002 | |
Before
MR RECORDER BURKE QC
MR D J JENKINS MBE
DR D GRIEVES CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR AHMED THOMSON (Of Counsel) Instructed by: Commission for Racial Equality Legal Services Dept 3rd Floor, Lancaster House 67 Newhall Street Birmingham B3 1NA |
For the Respondents | MR KEVIN J O'DONOVAN (Of Counsel) Instructed by: Messrs Eaton Ryan & Taylor Solicitors Lombard House 145 Great Charles Street Birmingham B3 3LP |
MR RECORDER BURKE QC:
The Facts
"Interpretation of the Hijab requirement was not necessarily in accordance with the provisions of the Holy Quran but that nevertheless it represented a form of relatively strict adherence to its requirements"
and that
"there were other women of Pakistani ethnic origin who were also practising Muslims who were less strict in their observance of the requirements for Hijab and had no difficulty in complying with a work place requirement to either remove their headscarf or to tack it inside their protective jacket".
The Issues
(1) did MCSL apply to Miss Hussain a requirement or condition which they applied equally to persons not of the same racial group as Miss Hussain but which was such that the proportion of persons of the same racial group as Miss Hussain who could comply with it was considerably smaller than the proportion of persons not of that racial group who could comply with it? and, if so,
(2) had MCSL shown the application to Miss Hussain of that requirement or condition was justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it was applied.
There was no dispute that, if Miss Hussain succeeded on these two issues, the application to her of the relevant requirement or condition was to her detriment because she could not comply with it.
Justifiability
Disproportionate Impact
(i) they found, uncontroversially, that there were different schools of thought and different practices in the observance of Hijab.
(ii) they concluded that the comparison to be made was between female employees of Pakistani ethnic origin and female employees not of that origin.
(iii) they found that the female staff referred to in MCSL's answers to the questionnaire were likely to have been Muslims of Pakistani origin; they inferred that in addition to those 8 staff there had been others of that origin who had removed their headscarves; but at best Miss Hussain was 1 of 9 known female staff of Pakistani ethnic origin 8 of whom had complied with MCSL's requirement.
(iv) Thus the Tribunal concluded, looking at the evidence at the highest in Miss Hussain's favour, almost 90% of the Pakistani ethnic origin group could comply; and 100% of the non-Pakistani ethnic origin group could comply.
(v) This was not sufficient to establish a disproportionate impact.
The Submissions
"The word "can" is used with many shades of meaning. In the context of s.1(1)(b)(i) of the 1976 Act it must, in my opinion, have been intended by Parliament to be read not as meaning "can physically" so as to indicate a theoretical possibility but as meaning "can in practice" or "can consistently" with the customers and cultural conditions of the racial group."
He went on to conclude that the Sikh applicant who was not allowed into school if he wore a turban could not, in the relevant sense, comply with the school's no turban rule.
"If a figure were to be selected in the field of employment it would be likely to vary according to the context and in particular as between a case where the requirement or condition is applied on a national scale in respect of which reliable supporting statistics are available and those where it is applied in relation to a small firm or an unbalanced workforce where the decision may have to be made on far less certain evidence and to a large degree upon the basis of the Tribunal's own experience and assessment applied to such figures as are available".
Mr. Thomson realistically accepted that the figures in these cases were examples and did not establish a principle of law and that while it would have been possible for the Tribunal to have found for Miss Hussain on this issue, on the figures which they used or on the basis of 1 in 5 who could not comply, the Tribunal was not or would not have been bound to do so.