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LELR Issue 115 (October 2006)

Contents

In the News
Sick Note
Reasonably Adjusted
You're How Old?
Religious Regulation
Caught by COT3
Blow your Whistle
Giving Notice

Religion and belief

Religious regulation

In discrimination cases, the law says that workers have to identify facts from which a tribunal could conclude that there has been unlawful discrimination before the burden of proof passes to the employer.

In Mohmed v West Coast Trains Ltd (the first decision on religious discrimination), the Employment Appeal Tribunal (EAT) said that tribunals could, at that first stage, also take into account facts put forward by the employer that disproved what the worker was alleging.

What were the basic facts?

Mr Mohmed worked for West Coast Trains Ltd as a customer services assistant from June 2003 to February 2004. A Muslim of Indian origin, his religion dictated that his beard should be about four inches in length.

The company gave Mr Mohmed a copy of its uniforms policy at the start of his probationary period, which made clear that his beard should be kept neat and tidy. Towards the end of his training period in August, he was asked to trim his beard and according to the company, the issue was resolved by September.

According to Mr Mohmed, however, his manager continued to complain about his beard until early December, shortly after the religion and belief regulations (RBR) came into force on 2 December 2003.

Mr Mohmed was dismissed in February “for lack of enthusiasm”. He claimed direct and indirect racial and religious discrimination, harassment and victimisation.

What did the tribunal decide?

The tribunal decided, on the facts before it, that the issue of Mr Mohmed’s beard had been resolved by about September. That meant that his case did not fall within the RBR.

In any event, it said that Mr Mohmed had not satisfied stage one of the test set down by the Court of Appeal in Igen v Wong Ltd (LELR 99). In other words, that he had not proven, on the balance of probabilities, facts from which the tribunal could conclude that the company had committed an unlawful act of discrimination.

What did the parties argue on appeal?

Mr Mohmed argued that regulation 29 of the RBR required the tribunal to apply the two stage test in Igen. At the first stage, it must only look at the facts put forward by the claimant, and must disregard any non-discriminatory explanation put forward by the respondent.

The company, on the other hand, said that there was no requirement on tribunals just to look at the facts put forward by the claimant. It argued that the onus was on the claimant to prove those facts at that stage. If the company was able to produce evidence that the tribunal preferred, then the fact would not be proved.

What did the EAT decide?

And the EAT agreed with the company. It said that Mr Mohmed had to prove facts from which a tribunal could infer that the company had treated him less favourably than a hypothetical non-Muslim comparator on grounds of his religion or belief.

To ascertain those facts, the tribunal had to follow the Court of Appeal’s guidance in Igen. This stated that tribunals could not take the employer’s explanation for his dismissal (in other words, his lack of enthusiasm) into account at stage one.

However, if tribunals could only take account of facts relied on by the claimant, it would have to ignore all the facts put forward by the company. In this case, facts about its uniforms policy that required beards to be kept neat and tidy; and the fact that it had a Sikh employee who conformed with that policy.

The EAT concluded the tribunal was right to decide that the issue of his beard had nothing “to do with his religion and everything to do with the company’s concern to enforce its uniform standard”.

Mr Mohmed had not satisfied the first stage of the Igen test and there had not, therefore, been any unlawful discrimination.