United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN HORAN (of Counsel) Instructed by: Messrs Christian Khan Solicitors 42 Museum Street Bloomsbury London WC1A 1LY
For the Respondent	MR EDMUND BEAVER (of Counsel) Instructed by: Birmingham City Council Legal Services Department Ingleby House 11-14 Cannon Street Birmingham B2 5EN

SUMMARY

Race Discrimination

Indirect race discrimination – justification – adequacy of reasons. Appeal allowed. Case remitted to fresh Employment Tribunal for rehearing.

HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Mr Loke, the Claimant before the Birmingham Employment Tribunal, against that Tribunal's Decision, promulgated with Extended Reasons on
   20 May 2004, dismissing his complaint of indirect racial discrimination brought against the Respondent, the Governing Body of Calthorpe Special School.

The Facts

2. The Claimant is a practising Muslim of Pakistani national origin. He follows the teachings of the Hanifi School of Thought on Islam, which requires all adult male believers to attend JUMU'AH prayers on Friday afternoons for 30 minutes, between 1.30 pm and 4.00 pm. It is further a requirement that such prayers are said in congregations of at least four people. The Claimant attended his Mosque to observe Friday afternoon prayers. He lived in Aston in Birmingham at the relevant time, and was an experienced Special Educational Needs Assistant.
3. The Respondent's school in Birmingham ("the School") caters exclusively for children with severe and profound learning difficulties. The School role numbered 260 children, many of whom had additional conditions including autism, sensory difficulties and challenging behaviour.
4. On 4 March 2003, the Claimant submitted an application to the School for the post of Special School Assistant. He was interviewed, first informally on 17 March, for any future vacancies and again on 20 March. His name was then retained for future reference.
5. During March 2003, the School was asked to admit a child, A, with behavioural problems, who required one-to-one Special Needs Support. He suffered from severe autism and had been excluded from his previous school. His history included assaults on fellow pupils and staff; his admission to the School depended entirely on the appointment of a Special Schools Assistant who could engage in one-to-one supervision of A.
6. On 2 June 2003 the Claimant met with Ms Humphry, a Deputy Head Teacher at the School, to discuss the temporary post of Special School Assistant until the end of July. That same day he met the Head Teacher, Mr Hardy, and on 4 and 5 June he attended the School in order to familiarize himself with the staff and pupils.
7. On Friday 6 June he visited A at home. He collected the boy and took him to school to attend a swimming class. At about midday he told Mr Weaving, also a Deputy Head Teacher, that he would need to leave the School that afternoon to go to the Mosque to pray. Mr Weaving responded that he would have to be at School that afternoon to meet the specific needs of A. We pause to observe first that it was the School's paramount consideration to look after the welfare of its pupils, and secondly that the School operated an inflexible rule that under one-to-one arrangements the assistant should be with his charge at all times during the School day, even accompanying the child to the toilet. Mr Weaving told the Claimant that under no circumstances should A be left on his own.
8. A was taken home by another member of staff and returned at 1.20 pm. At about
   1.30 pm the Claimant went to see Mr Weaving and told him that he was going to the Mosque to perform JUMU'AH prayers. He was told that he could not leave A; the Claimant nevertheless went to the Mosque. A was then returned home.
9. On Monday 9 June the Claimant returned to School and saw Ms Humphry, who was then joined by Mr Hardy. It was explained to the Claimant that the School could not employ him in a one-to-one role unless he was prepared to work alongside the pupil during the whole of the time that he was at School. The Claimant insisted that he must leave School on Friday afternoons to attend prayers at the Mosque. A discussion then took place about alternative employment at the School. Finally the Claimant left, as the Tribunal observed, on amicable terms.
10. The Tribunal found that had the Claimant taken the post looking after A, the Respondent would have assisted him in finding a congregation from amongst its Muslim employees to say JUMU'AH prayers between 3.20 pm, when the School closed, and 4.00 pm.

Indirect Discrimination

11. The Claimant established prima facie indirect discrimination. The Respondent accepted that it imposed a requirement or condition with which the Claimant could not comply; that there was disparate impact and that the Claimant suffered a detriment. The sole issue was whether the Respondent had established that the discriminatory condition was justifiable.

Justification

12. The Tribunal was referred by Counsel, both of whom appear before us today, to the relevant authorities. The Tribunal set out its self-direction on the law derived from those cases, in a way which is not challenged by Mr Horan in this appeal, at paragraph 10 of their Reasons thus:

"The issue of justifiability is a question of fact. There is some guidance in the cases as to the test to be applied. In Ojituku the EAT spoke of "reasonably necessary" and "right and proper in the circumstances" and in the same case the Court of Appeal referred to reasons which are "sound and tolerable to right thinking people" and "good and adequate reasons". The Court of Appeal in Hampson concluded that whether a requirement or condition is justifiable requires and objective balance to be struck between the discriminatory effect of the requirement of condition and the reasonable needs of the person who applies it."

Those cases are Ojituku Oburoni v Manpower Services Commission [1982] IRLR 418 in the Court of Appeal and Hampson v Department of Education and Science [1989] IRLR 69, also in the Court of Appeal.

The Tribunal's approach

13. At paragraph 11 the Tribunal set out what they regarded as the crucial factors to be considered in carrying out the balancing exercise between the effect of the discriminatory condition on the Claimant and the reasonable needs of the Respondent. Paragraph 11 reads:

"11. The Tribunal believes that the crucial factors for consideration in this case are as follows:

(a) The applicant is a Muslim with deep religious beliefs. He has habitually attended the Mosque for Juma prayers on Friday afternoons since the age of 16.

(b) Although attendance at the Mosque is the applicant's preference, he religious obligations could be performed elsewhere so long as the prayers were said between 1.30 pm and 4 pm on a Friday afternoon and provided there was a congregation of at least four people.

(c) Notwithstanding that the applicant had been interviewed in March 2003 and had been in the School on 2, 4 and 5 June, the first the respondent knew of the applicant's requirements was less than 2 hours before he intended to go to the Mosque for prayers on 6 June.

(d) The respondent runs a School catering for children with severe learning difficulties.

(e) The applicant knew when he accepted the job that it was on a one-to-one basis and he knew what that entailed.

(f) The pupil to be assigned to the applicant suffers from severe autism, had a history of behavioural problems which involved assaults on staff and pupils and had been expelled from his previous school.

(g) The applicant was meeting the pupil for the first time on 6 June and the main object of the exercise was for the applicant to get to know the pupil out of the home environment.

(h) The welfare of its pupils is a matter of paramount importance to the respondent.

(i) In order to achieve its objectives the respondent operates an inflexible system in respect of timetabling and also one-to-one arrangements.

(j) Had the applicant remained at the school the respondent would have assisting the applicant in finding a congregation from amongst its Muslim employees in order for Juma prayers to be said on Friday afternoons between close of school at 3.20 pm and 4 pm.

(k) At the meeting on 9 June, whilst the respondent made it plain that it could not continue to employ the applicant on a one-to-one basis if he left school on Friday afternoon, it nonetheless made clear that the respondent was prepared to employ the applicant in alternative roles as and when available."

14. At paragraph 12 of their Reasons the Tribunal set out their conclusions leading to the dismissal of the application in this way:

"The tribunal has considered all of the points referred to above individually, collectively and "in the round"". In doing so, it has approached the matter along the lines advocated in Hampson and has tried to strike an objective balance between the discriminatory effect of the requirement/ condition and the reasonable needs of the respondent in applying it. It is for the respondent to show on the balance of probabilities that the condition/requirement was justifiable in all the circumstances and on balance the tribunal is unanimously satisfied that it was. In arriving at its decision, the tribunal has been careful to consider separately the situation that existed on Friday 6 June 2003 and the situation that existed the following Monday, 9 June 2003, in respect to any future arrangements. Applying the approach referred to above, the tribunal is satisfied that its conclusion applies equally to both situations."

The Appeal

15. We can deal shortly with the general perversity ground of appeal raised by Mr Horan. He submits that we should declare that the Tribunal's conclusion was ethically and morally unacceptable, since it means that a devout Muslim could not take the post of Special Needs Assistant at the School, due to the Respondent's inflexible rule that the Assistant responsible for a pupil on a one-to-one basis must be with that child throughout the school day at all times, save for lunchtime. He prays in aid certain remarks by Scarman LJ in the course of his dissenting judgment in Ahmed v Inner London Education Authority [1978] QB 36 at
    page 50, itself not a case on indirect racial discrimination as such.
16. We reject that submission. The test for perversity in law is clearly set out by the
    Court of Appeal in Yeboah v Crofton [2002] IRLR 634 (see particularly Mummery LJ at
    paragraphs 92-95). In our judgment the conclusion in this case does not begin to pass the test of perversity as there explained. On the contrary, we are satisfied that this Tribunal's conclusion was a permissible option.
17. However, we think that the real point in this appeal concerns the adequacy or otherwise of the Tribunal's written Reasons. We accept of course that a tribunal's reasons are not required to be "an elaborate, formalistic product of refined legal draftmanship" (per Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250, at 251). However, we consider that as an irreducible minimum, the Tribunal must explain how the issues or issue in the case was resolved (English v Emery Reimbold & Strick Ltd [2003] IRLR 710), and in particular how it got from its findings of fact to its conclusions. Simply to recite the background and the parties' contentions and then to announce a conclusion is not sufficient (see Sedley LJ in Tran v Greenwich Vietnam Community [2002] IRLR 735).
18. We return to paragraphs 11 and 12 of this Tribunal's Reasons. Mr Horan submits that the Tribunal took into account irrelevant factors, particularly at paragraph 11(c), (e), (j) and (k). Mr Beaver contests the lack of relevance of those factors. Mr Horan also submits that the Tribunal failed to explain why it apparently rejected the Claimant's case that the inflexible rule, as we have termed it, was unnecessary. However we think that the real criticism of the Tribunal reasons is that the Tribunal has failed to identify those factors leading to an overall finding as to the degree of discriminatory treatment suffered by the Claimant by the application of the relevant requirement or condition; and similarly, those factors leading to a finding as to the reasonable needs of the Respondent, and then to explain why they have concluded that the Respondent succeeded in discharging the burden of showing that the balancing exercise identified in Hampson falls in their favour.
19. Mr Beaver has sought to persuade us that it is clear from the Tribunal's findings of fact at paragraph 5 of their Reasons, and the "crucial factors", as the Tribunal characterized them, set out at paragraph 11, why they reached the conclusion that they did. He has been unsuccessful in that aim. We accept Mr Horan's argument on the inadequacy of Reasons. This Decision is not Meek-compliant, to use Sedley LJ's expression in Tran, and must, in our judgment, be set aside.
20. That leaves only the question of disposal. Mr Beaver invites us to return the case to the same Employment Tribunal so that its reasoning process may be properly explained. Mr Horan points out that this case was determined below in May 2004; further, it is so unclear how the Tribunal approached the task of carrying out the balancing exercise that it would be unsafe to return it to the same Tribunal. We ourselves are also concerned with the perception of justice being seen to be done. We do not doubt that the previous Tribunal would approach the matter professionally on remission, as Mr Beaver submits. However, should the result be the same, there is a real fear that the losing party may believe that there has been a prejudgment second time around.
21. In these circumstances we shall allow this appeal and remit the case, solely on the issue of justification, to a fresh employment tribunal.