Fetter Lane, London, EC4A 1NL |
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B e f o r e :
DEPUTY JUDGE OF THE HIGH COURT
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MR RAFIQUL ISLAM |
Appellant |
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- and - |
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LOOMIS UK LTD |
Respondent |
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Julie Duane (instructed by Actons Solicitors) for the Respondent
Hearing date: 28 February 2025
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Crown Copyright ©
SUMMARY
Religion or Belief Discrimination: section 136 Equality Act 2010
The Claimant was selected for redundancy in phase 2 of a programme of redundancies. He was scored against an agreed matrix but did not achieve a sufficient number of points to reach the threshold applied by the respondent. He was dismissed. The Tribunal found the dismissal procedurally and substantively fair.
The Claimant maintained his selection for redundancy amounted to direct discrimination because of his Islamic faith. The Tribunal dismissed that complaint.
On appeal, the Claimant argued the Tribunal had failed to apply the burden of proof provisions contained in section 136 Equality Act 2010 and had failed to consider whether numerical evidence about the selection exercise was sufficient to shift the burden to the Respondent.
Held, dismissing the appeal:
(i) Although the Tribunal had not referred expressly to section 136 Equality Act 2010, or the judicial guidance relating to it, it had in substance considered whether the Claimant had made out a prima facie case of discrimination and concluded he had not.
(ii) Whilst in a suitable case, appropriate statistics, either on their own or taken with other evidence, might be sufficient to shift the burden of proof, the numbers relied on by the Claimant on this appeal were not capable of doing so and had not been presented to the Tribunal as they had on appeal. No error of law was disclosed by the Tribunal not expressly considering whether they shifted the burden of proof.
MARCUS PILGERSTORFER KC, DEPUTY JUDGE OF THE HIGH COURT:
INTRODUCTION
THE FACTS AND THE JUDGMENT BELOW
"16. The claimant implied the respondent used the redundancies to dispose of problematic members of staff because of the six staff made redundant from the Dunstable Depot in phase 1:
16.1. Five were Muslim,
16.2. All had in excess of five years' service, one in excess of 20,
16.3. The Muslim staff used work facilities for prayer during working hours, and the non-Muslim had health problems.
16.4. Two non-Muslim members of staff, each with less than two years' service were retained in that phase."
"No evidence was produced on which the tribunal could conclude that the use of work facilities for prayer during work hours was considered problematic by management."
a. Whilst the claimant had done CViT work in the past, Mr Ketteringham explained that points were only awarded if this work had been done in the last twelve months and the tribunal found (against the claimant) on the evidence that he had not done such work in the preceding twelve months. The tribunal concluded he was not therefore entitled to a CViT score.
b. In relation to the vault work, whilst the claimant had performed some vault tasks, the work required security clearances and the claimant had not done the necessary training or been signed off.
c. In relation to the versatility score, the tribunal found on the evidence that those who were multi-skilled with additional qualifications would receive the versatility score. The tribunal scrutinised Mr Ketteringham's evidence as to how he had scored under this criterion and concluded he was consistent in his approach. Individuals needed three skills to get a versatility score. The tribunal concluded that the claimant was not entitled to one.
"We are satisfied that the matrix was applied consistently and do not agree with the claimant's argument that these employees should have received the same scores as him."
The tribunal reviewed the claimant's score sheet together with the comparators he had identified and concluded overall that the procedure and process followed was fair. It rejected a submission that the respondent failed to offer alternative employment because there were few, if any, alternatives to offer. Where there were roles, they were advertised so that a large group of redundant employees could apply. Although he saw the roles, the claimant chose not to apply. The tribunal considered this and the claimant's subsequent appeal and found them to be fair.
"35. The claimant asserted that because his surname was Islam it ought to have been obvious to the respondent that he was Muslim. Applying that logic to the 18 employees in the selection pool for redundancy one other had a name typically recognised as Muslim; a third, not selected for redundancy in that phase also had such a name. The Respondent did not collect data on its employees' religions."
"Any other unfavourable treatment?
53. The claimant gave evidence that KS promised another employee that she would train him and make him full time. Incidentally this employee has a name which applying the claimant's own logic is typically associated with the Muslim faith. The claimant gave evidence he asked MK for this training but it was never provided. MK gave evidence he did not recall being asked. This was not included in the claimant's statement or claim form but offered by him during his oral testimony. This assertion is unsupported by evidence and we cannot conclude this is evidence of discrimination on the basis of religion.
54. The claimant first raised his concerns about religious discrimination on 10 December 2020 although he conceded during his appeal that this was based on his feeling and could not point to specific evidence. In the circumstances the only avenue open to the respondent was to review the process to see if there was any evidence of inconsistency of approach to Muslim staff members. This was done and no inconsistency or unfairness identified at all.
55. MK was made redundant in phase 3 and we cannot see any advantage to him in using the process to jettison 'problematic' employees as suggested by the claimant. We heard no evidence on which we could conclude the respondent found the claimant or any other employee 'problematic'."
"58.3. The claimant alleged that the respondent failed to properly investigate his feeling that the reason he was selected for redundancy was based on religion. The courts recognise that such discrimination can be difficult to spot. The respondent reviewed the application of the matrix and concluded the claimant's selection was consistent with his colleagues. On that basis we do not find that the respondent failed to investigate.
…
58.8. The claimant's argument was that he was unfairly selected for redundancy on the grounds of his religion. The respondent gave evidence that at that time it did not ask employees to declare their faith. The claimant argued that his name alone should have made it obvious he was Muslim. Applying his logic across the piece we noted two other employees where the same could be said. One was made redundant and one wasn't. In the circumstances we are satisfied there were no grounds on which we could conclude racial discrimination played any part in the redundancy selection."
"59. We have found no evidence to suggest the claimant was unfairly selected for redundancy at all. Whilst the claimant argues he was the only Muslim left in his department and therefore the decision to make him redundant had to be discriminatory it does not stand up to scrutiny. MK made all the redundancy decisions at the Dunstable Depot and we heard no evidence that pointed to an inconsistency of approach.
60. We conclude the claimant has failed to discharge his burden of proof."
THE GROUND OF APPEAL
THE LAW
"136 Burden of proof
(1) This section applies to any proceedings relating to a contravention of this Act.
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.
…
(6) A reference to the court includes a reference to—
(a) an employment tribunal…"
"This section provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act. The exception to this rule is if the proceedings relate to a criminal offence under this Act."
"Annex
(1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word 'could' in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not aground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to dis-charge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."
"Usually be desirable for a tribunal to go through the two stages suggested in Igen." [But that]: "It is not necessarily an error of law to fail to do so."
At paragraph 76 he explained:
"There is no purpose in compelling Tribunals in every case to go through each stage. They are not answering an examination question, and nor should the purpose of the law be to set hurdles designed to trip them up. The reason for the two stage approach is that there may be circumstances where it would be to the detriment of the employee if there were a prima facie case and no burden was placed on the employer, because they may be imposing a burden on the employee which he cannot fairly be expected to have discharged and which should evidentially have shifted to the Employer. But where the Tribunal has effectively acted at least on the assumption that the burden may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever."
He went on to explain it is not the employee who is disadvantaged where the tribunal focuses only on the second stage (see paragraph 77 of his judgment).
"…On the contrary, the Court of Appeal went out of its way to say that its guidance was not a substitute for the statute: paragraph 16. Courts do not supplant statutes. Judicial guidance is only guidance."
Lord Justice Mummery also emphasised that Igen did not decide that an error of law will be committed by omitting to repeat the guidance or by failing to work through the guidance paragraph by paragraph (see paragraph 10). In an important section of his judgment, at paragraphs 56 to 58, Lord Justice Mummery explained as follows:
"56 The court in Igen Ltd v Wong [2005] ICR 931 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.
57 "Could…conclude" in section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.
58 The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim."
"39 This submission betrays a misconception which has become all too common about the role of the burden of proof provisions in discrimination cases. Those provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination - generally, that is, facts about the respondent's motivation (in the sense defined above) because of the notorious difficulty of knowing what goes on inside someone else's head – "the devil himself knoweth not the mind of man" (per Brian CJ, YB Pas 17 Edw IV f1, pl 2). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent's motivation and what is in issue is its correct characterisation in law. In the present case, once the tribunal had found that the reasons given by Mr Hudson and Mr Buckland in their letters reflected their genuine motivation, the issue was indeed how that was to be characterised and the burden of proof did not come into the equation. (Cf our observations in Hartlepool Borough Council v Llewellyn [2009] ICR 1426, 1448C, para 55.)"
"32 The points made by the Court of Appeal about the effect of the statute in these two cases [Igen and Madarassy] could not be more clearly expressed, and I see no need for any further guidance. Furthermore, as Underhill J (President) pointed out in Martin v Devonshires Solicitors [2011] ICR 352, para 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing too offer where the tribunal is in a position to make positive findings on the evidence one way or the other. That was the position that the tribunal found itself in in this case. It is regrettable that a final resolution of this case has been so long delayed by arguments about onus of proof which, on a fair reading of the judgment of the employment tribunal, were in the end of no real importance."
"41. It is important that employment tribunals do not only focus on the proposition that the burden of proof provisions have nothing to offer if the employment tribunal is in a position to make positive findings on the evidence one way or the other. If there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment. To do so ignores the prior sentence in Hewage that the burden of proof requires careful consideration if there is room for doubt.
42. Where there is significant evidence that could establish that there has been discrimination it cannot be ignored. In such a case, if the employment tribunal moves directly to the reason why question, it should generally explain why it has done so and why the evidence that was suggestive of discrimination was not considered at the first stage in an Igen analysis. Where there is evidence that suggests there could have been discrimination, should an employment tribunal move straight to the reason why question it could only do so on the basis that it assumed that the claimant had passed the stage one Igen threshold so that in answering the reason why question the respondent would have to prove that the treatment was in no sense whatsoever discriminatory, which would generally require cogent evidence. In such a case the employment tribunal would, in effect, be moving directly to paragraphs 10-13 of the Igen guidelines.
43. Although it is legitimate to move straight to the second stage, there is something to be said for an employment tribunal considering why it is choosing that option. If at the end of the hearing, having considered all of the evidence, the tribunal concludes that there is nothing that could suggest that discrimination has occurred and the employer has established a non-discriminatory reason for the impugned treatment, there would be no error of law in just answering the "reason why" question, but it is hard to see what would be gained by doing so, when the tribunal has already concluded that there is no evidence that could establish discrimination, which would result in the claim failing at the first stage . There is much to be said for making that finding and then going on to say that, in addition, the respondent's non-discriminatory reason for the treatment was accepted.
44. If having heard all of the evidence, the tribunal concludes that there is some evidence that could indicate discrimination but, nonetheless, is fully convinced that the impugned treatment was in no sense whatsoever because of the protected characteristic, it is permissible for the employment tribunal to reach its conclusion at the second stage only. But again it is hard to see what the advantage is. Where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet. It is hard to see the disadvantage of stating that there was evidence that was sufficient to shift the burden of proof but that, despite the burden having been shifted, a non-discriminatory reason for the treatment has been made out.
45. Particular care should be taken if the reason for moving to the second stage is to avoid the effort of analysing evidence that could be relevant to whether the burden of proof should have shifted at the first stage. This could involve treating the two stages as if hermetically sealed from each other, whereas evidence is not generally like that. It also runs the risk that a claimant will feel that their claim that they have been subject to unlawful discrimination has not received the attention that it merits."
DISCUSSION AND CONCLUSIONS
Did the Employment Tribunal apply the approach required by section 136?
"EqA, section 13: direct discrimination because of religion
(iii) The Claimant is a Muslim. He alleges that he was selected for redundancy and dismissed because of his religion. His complaint is about both the selection process and the decision itself. His complaints about the selection process are the same as those that he relies on in his unfair dismissal claim. It is not in dispute that he was selected for redundancy and dismissed.
(iv) In relation to the treatment that is either admitted by the Respondent or proven by the Claimant, was that treatment "less favourable treatment", in that the Respondent treated the Claimant less favourably than it treated comparators in not materially different circumstances from the Claimant who were not Muslims? The Claimant relies on the following comparators: Andi Williams, Nathan, Tracey, Tony Waddock, Ryan Smith, Sanjay Kumar, Adam Hacklett, Christina, Marty, Tom, Adrian Birch, Dave Price, Mark Silver, Carl Watts and Ryan Inns.
(v) If so, was this because of the Claimant's religion?"
a. First, as its starting point, the tribunal recognised that in direct discrimination cases overt evidence of discrimination can be difficult to find (see the reference at paragraph 58.3 to courts recognising that such discrimination can be difficult to spot).
b. Secondly, the tribunal referenced the claimant's burden of proof at paragraph 60 when saying that it concluded he had failed to discharge it. Read fairly and in context, that is a recognition by the tribunal that the claimant had the burden to prove a prima facie case of discrimination, or to use the words of the statute, "facts from which the court could decide in the absence of any other explanation that" the respondent directly discriminated against him.
c. Third, I am reinforced in my view that the reference at paragraph 60 is to the burden of proof under section 136 Equality Act 2010 because of the language used by the tribunal at various points in its judgment. At paragraph 58.8, when the tribunal squarely addressed the discrimination complaint, it said it was satisfied that there were no grounds on which it "could conclude" discrimination played any part in the selection. That clearly invokes the statutory language and involved the tribunal reaching a decision that a prima facie case was not made out.
d. A similar approach is evident in paragraphs 53 to 55 in which the tribunal examined other evidence under the heading "any other unfavourable treatment". It concluded in respect of all matters traversed that they did not suggest that religion was part of the reason for the claimant's selection. I note again the echoes of section 136 in the language used in the final sentence of paragraph 55: "We heard no evidence on which we could conclude the respondent found the claimant or any other employee 'problematic'."
Statistics
"Statistics can help in establishing a prima facie case of discrimination, but the ET was entitled to question their significance in this case: because it was not convinced by the selection of age ranges… but, more substantively, because it was not satisfied that it could infer discrimination simply from the statistical picture alone."
a. First, he relied on the observation at paragraph 16 of the judgment that five out of six of the staff made redundant at the depot during phase 1 were Muslim. No reliance was placed on the reference to length of service issues identified in paragraph 16. As I have mentioned, it transpired during this appeal hearing that this was not a proper reflection of the numbers in question. In fact 28 individuals had been made redundant in phase 1 from the depot and the figure of five out of six related to a subgroup of the 28, namely those who worked in the vault section. Thus, the evidential picture was that five of the 28 people selected for redundancy at phase 1 were known by the claimant to be Muslim. That equates to around 18%.
b. Secondly, Mr Kohanzad relied on the fact that at phase 2 the claimant was the only Muslim in the department and he was one of the 17 selected.
CONCLUSION