Appeal No. UKEAT/0487/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 May 2011
	   Judgment handed down on 6 July 2011

Before
MR RECORDER LUBA QC
MS G MILLS CBE
MISS S M WILSON CBE

MR H CHATWAL	APPELLANT

WANDSWORTH BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR D STEPHENSON
(of Counsel)
Instructed by:
Lambeth Law Centre
Unit 4
The Co-op Centre
11 Mowll Street
London
SW9 6BG	
For the Respondent	MS S BELGRAVE
(of Counsel)
Instructed by:
Messrs Sharpe Pritchard Solicitors
Elizabeth House
Fulwood Place
London
WC1V 6HG	

SUMMARY
RELIGION OR BELIEF DISCRIMINATION
RACE DISCRIMINATION – Indirect

Discrimination on grounds of religion or belief. 
Employee required to join a fridge-cleaning rota as a condition of using the communal staff kitchen.  Complaint that the requirement infringed his religious belief that he cannot touch meat or meat products.  At pre-hearing review the Employment Tribunal found that he failed to meet the burden of proving a sufficient cohort - of others holding the same belief - to constitute a ‘group’.  The issue on appeal was whether the Tribunal had correctly addressed such evidence as it had received on the point or given adequate reasons for rejecting it.

MR RECORDER LUBA QC 
Introduction
1.	This is an appeal by Mr Chatwal from the dismissal by the Employment Tribunal at London South (chaired by Employment Judge Balogun) of his claims of discrimination in the forms of indirect discrimination relating to religion or belief and indirect race discrimination brought against his former employers Wandsworth Council.

2.	Mr Chatwal had been employed by the Council from October 2002 to September 2009 as a Customer Services Advisor in its Technical Services Department.

3.	In May 2008 the Council introduced a new requirement that staff in that department using the communal kitchen facility should, as a condition of continued use, participate in a rota for cleaning of the kitchen surfaces and of the fridge.  It was a necessary consequence of that condition that, from time to time in the course of such cleaning, the staff members might come into contact with meat or meat products left in the fridge (or the remnants thereof) which they would be required to clear or clean.

4.	Mr Chatwal told the Council that compliance with the new requirement would conflict with his religious belief, as a Sikh, that he was not supposed to have contact with meat or meat products and that, although he was happy to clean other areas of the kitchen, he would not clean the fridge. Having declined to comply with the fridge cleaning requirement, he did not participate in the rota and was, in consequence, not able to use the kitchen any longer.

5.	His case before the Employment Tribunal was that the imposition upon him of the requirement to participate in the cleaning rota as a condition of continued use of the kitchen amounted to indirect discrimination on grounds of race, religion or belief.

6.	At first impression, his case appeared to be that the relevant restriction on contact with meat or meat products derived from his practice of the Sikh faith, as that faith is generally or broadly understood.  But his case was - or certainly became - more refined.  In his claim to the Employment Tribunal he stated that: “I am a fully practising Sikh which means that I am not supposed to have contact with meat or meat products” and that “Sikhs who have taken Amrit (Holy water) vow never to eat, touch or prepare meat”.  In the same claim form, he framed his discrimination complaint in these terms “Fully practising Sikhs could not comply with [the Council’s] requirement because they are supposed to avoid touching or eating meat.”

7.	Before the Employment Tribunal his evidence was that at the age of 13 he had taken Amrit and that he was accordingly an Amritdhari Sikh. At the same age he had become a member of the Guru Nanak Nishkam Sewak Jatha or ‘GNNSJ’ branch which is a revivalist organisation within the broader Sikh community.  It was his case that it was an aspect of the religion or belief of that sub-group of the Sikh faith, or at least some members of it, that they should not come into contact with meat or meat products.

8.	Pursuant to case management directions, the Employment Tribunal conducted a pre- hearing review to determine two issues, namely:

“i. Whether the requirement that the Claimant participate in the fridge cleaning rota, which involved cleaning a fridge which might contain meat or meat products amounted to indirect race and/or indirect religious discrimination, in that his religion forbad him to touch meat or meat products.
ii. Whether having regard to the relevant time limits, the tribunal had jurisdiction to hear the Claimant’s complaints of indirect race and indirect religious discrimination.”

The relevant statutory provisions
9.	At the date of the making of this complaint, the relevant statutory provision relating to discrimination on grounds of religion or belief was contained in regulation 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 which provides:

“Discrimination on grounds of religion or belief
(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if—
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but—
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.”

10.	As to discrimination on grounds of race, the corresponding provision in section 1(1A) of the Race Relations Act 1976 (as amended) was in virtually identical terms.

11.	For the purposes of applying these statutory provisions, it is for the claimant to establish that he is not the sole person who would be disadvantaged by the provision, criteria or practice in question. In consequence of the terms of, and use of the word “persons” in, paragraph (1)(b)(i) he must demonstrate that there are others who hold the same religion or belief and would similarly be disadvantaged: Eweida v British Airways [2010] EWCA Civ 80.

12.	Of course, both statutory provisions have now been replaced by the Equality Act 2010.

The decision of the Employment Tribunal
13.	On the two preliminary issues before them, the Employment Tribunal ruled that Mr Chatwal’s complaints had been brought in time but dismissed them on the basis that the evidence did not satisfy the burden of proof upon Mr Chatwal to make out his claims.

14.	The Employment Tribunal found that the beliefs of Amritdhari Sikhs who were GNNSJ members amounted to religious beliefs and that (as had been common ground) the requirement to clear out the fridge was a provision, criterion or practice (‘PCP’) for the purposes of the regulations and statute.  The claims failed because Mr Chatwal could not show to the Tribunal’s satisfaction that, in respect of the non-touching of meat, there was a significant number of others of the same religion or belief as himself.

15.	Mr Chatwal appeals from the dismissal of his claims. For its part, the Council cross-appeals from the decision that the claims were brought in time.

16.	The Employment Tribunal’s detailed reasons for dismissing the claims are set out in a reserved judgment entered on 14 July 2010.  That judgment records that in addition to hearing and reading the evidence of Mr Chatwal and his line manager, the Employment Tribunal also had the benefit of the oral and written evidence of two experts on Sikh religious matters.  Professor Gurhurpal Singh was instructed by the Claimant and Dr Indarjit Singh was instructed by the Council.

17.	In short, the Employment Tribunal found that:

(1)	There was nothing in Sikh scriptures or the Sikh Code of Conduct to prohibit the touching of meat. The Code did not even prohibit the eating of meat (except consumption of Halal or Kosher meat);

(2)	Although the constitution of the GNNSJ did prohibit the eating of any meat, that constitution was silent on the question of any prohibition in the touching of meat; and

(3)	Mr Chatwal had failed to establish by statistical evidence, or otherwise, any significant number of Amritdhari Sikhs who were members of GNNSJ who may (like him) believe they were not permitted to come into contact with meat.

18.	In those circumstances the central issue before the Employment Tribunal, as they expressed it, was whether this PCP put persons of Mr Chatwal’s religion or belief at a disadvantage compared to others. They directed themselves that the burden of proof was upon Mr Chatwal to establish the disparate impact of the PCP on a group or, putting it another way, that there were a sufficient number of people who shared his belief to constitute a “group”.

19.	They found that no group disadvantage had been established.  On the evidence, they concluded that:

“21. We do not consider that the Claimant has discharged the burden of showing group disadvantage.  At best he has established that his belief is a personal and subjective religious belief, which, whilst sufficient for a direct religious discrimination complaint, is not so for an indirect claim.
22. Even if we were to accept that the GNNSJ constitution extended to the touching of meat, we have insufficient evidence of the number of GNNSJ members which means that the Claimant is unable to satisfy us that GNNSJ members or indeed other Amritdhari Sikhs would be at a particular disadvantage when compared to others, such as, for example, vegetarians who held strong views about contact with meat for moral reasons.”

20.	Accordingly, they dismissed the indirect discrimination claim grounded on religion or belief.  As to the race discrimination complaint, the Employment Tribunal directed themselves (correctly) at paragraph 24 that Sikhism is a race as well as a religion but that Mr Chatwal had been “unable to produce convincing evidence to show, on the balance of probability, that Sikhs as a race were particularly disadvantaged” by this particular PCP.

21.	In those circumstances it was not strictly necessary to consider the time-limit point but the Employment Tribunal said this in respect of it:

“25. Had we not dismissed the indirect discrimination complaints, we would have found that they were presented in time as we were satisfied that the Respondent’s kitchen cleaning policy was a policy which the Respondent continued to adopt right up to the time of the Claimant’s dismissal.  It was therefore an act that extended over a period ending on the date of the Claimant’s dismissal i.e 11.9.09.  As the claim was presented on 19 November 09, it was well within the relevant 3 month time limit.”

This appeal and cross-appeal
22.	In the Notice of Appeal, some nine grounds were advanced. They were pressed by Mr Stephenson for Mr Chatwal and were well developed in his written and oral argument.  We had similar assistance from Ms Belgrave for the Council.

23.	The grounds fall into two broad groups.  First, Grounds 4, 5, 6, and 7 address aspects of the handling by the Employment Tribunal of the evidence and complain of a failure in its obligations to give reasons for its decision. Second, Grounds 1- 3 are concerned with the alleged misapplication of the law to the facts even as they were found by the Employment Tribunal.  Freestanding Grounds 8 and 9 contend that the conclusions of the Employment Tribunal on fact and law arose from failure to have regard to relevant considerations or were perverse.

24.	The Council’s cross-appeal deals exclusively with the time limit point.  It asserts that the Tribunal failed to engage with the Council’s contention that the claim was out of time because the PCP ceased to apply to Mr Chatwal when he was suspended from work (in respect of a matter unconnected with the PCP) in September 2008.  He did not return to work prior to his dismissal in September 2009.  His ET1 was not presented until November 2009. It was therefore, on the Council’s case, out of time.

Discussion and Conclusions
25.	The task for the Employment Tribunal on the first of the preliminary points it had to determine was to weigh the evidence and find whether Mr Chatwal had discharged the burden of showing that at least some others, or a ‘group’, shared the same religious belief as himself in relation to the touching of meat.

26.	This exercise was not helped by the fact that there is no consensus in law as to how large (or small) this cohort of others or “group” must be in order to suffice. In Eweida the Court of Appeal identified a spectrum of views as to how large a cohort it might be necessary to identify. Lord Justice Sedley said at [18]:

“On the narrowest view, its practical application in a case like this would require evidence that other uniformed BA staff would, like the claimant, have wished to wear a cross in a visible place but were deterred by the code from doing so: the fact that, unlike the claimant, they had not chosen to provoke a confrontation would not count against them. On the widest view it would operate wherever evidence showed that there were in society others who shared the material religion or belief and so would suffer a disadvantage were they to be BA employees. On an intermediate view, it would operate by assuming, even if it is not the case, that the workforce includes such others and asking whether they too, or some of them, would be adversely affected by the relevant requirement. All three have difficulties. The narrow view excludes the solitary individual from the protection of the law against indirect discrimination – a result which the Disability Discrimination Act 1995 explicitly avoids but which the 2003 Regulations do not. The wide view places an impossible burden on employers to anticipate and provide for what may be parochial or even factitious beliefs in society at large. The intermediate view, despite its attractions, in practice risks becoming merged with the wide view by inviting proof that in the world outside the workforce are co-religionists or fellow believers, however few, who are to be assumed to have entered the same employment as the claimant and have become subject to the requirement to which the claimant objects.”

27.	But in that case the Court of Appeal did not have to decide the issue of which view was correct.  In the absence of any specific guidance, the Employment Tribunal in this case could only take a ‘steer’ from the Court of Appeal’s endorsement of what this Employment Appeal Tribunal had said in Eweida, namely that (at [60]):

“In our judgment, in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group.”

28.	In the instant case, the Employment Tribunal found that there was no statistical material advanced by the Claimant on which they could rely.  In those circumstances it was crucial for them to address and weigh the other evidence they had heard and read as to whether there were sufficient others of the same belief as Mr Chatwal to constitute a ‘group’.

29.	On this critical aspect of the way in which the Employment Tribunal had to resolve the case before them, we are driven to accept that the central thrust of the first cluster of grounds of appeal in this case is made out.  The Employment Tribunal has not, in our judgment, explained why – on the particular evidence that it had before it – it found that Mr Chatwal had not met the burden of proving that there was a significant group of others holding the same religious belief as he held in relation to touching of food.  We shall accordingly allow the appeal.  As we were not persuaded that the Employment Tribunal had otherwise materially misdirected itself in law, we are satisfied that this was a case in which the matter could be restored to the same Tribunal for further consideration.  On the last occasion it did not have the benefit of oral argument from counsel.  We believe it will benefit from doing so on remission.  It will be a matter for the Tribunal whether it considers it necessary to rehear the evidence or admit further or new evidence.

30.	In those circumstances we shall express our own reasons relatively shortly as the final evaluation of the evidence is a matter for the Tribunal on remission.

31.	On the critical question of whether there was a sufficient or significant number of others to constitute a ‘group’, the Employment Tribunal had four pieces of non-statistical evidence to sift and evaluate.  First, the evidence of Mr Chatwal himself.  Second, a letter from the President of the Khalsa Centre.  Third, a letter from Sukhbir Singh.  Fourth, the opinion evidence of the experts.  We shall deal briefly with each in turn.

Mr Chatwal’s evidence
32.	The Employment Tribunal record (at paragraph 9) Mr Chatwal’s own evidence as being that he took Amrit at a ceremony at the same time as 40-50 other Sikhs and that he was told at the ceremony that he was not allowed to come into contact with meat.  His witness statement stated that he was told this by Mr Sukbur Singh, one of those officiating, and that it was said “out loud”.  If the Tribunal accepted this evidence, the proper inference might well have been (1) that at least 40-50 other persons share Mr Chatwal’s belief and (2) that the official may well have given the same instruction at other such ceremonies at which he was presiding and at which a number of other Sikhs may have taken Amrit. The Employment Tribunal do not say in their judgment whether they accept or reject this evidence.

33.	Ms Belgrave invited us to infer that the Employment Tribunal had rejected it. As she reminded us, they certainly identify an aspect of Mr Chatwal’s evidence which they found contradictory (at paragraph 10) and they make no clear finding that they actually accept that he has the belief about not touching meat that he professes (simply saying at paragraph 21 that “at best” this belief had been established). She pointed to what were said to be striking inconsistencies in Mr Chatwal’s evidence. Not least that he appeared to have no objection to touching meat in the process of cleaning it from the kitchen surfaces as opposed to the fridge.

34.	Evaluating the evidence and credibility of a witness is a key task for an Employment Tribunal and in this case one simply cannot see from the judgment whether Mr Chatwal’s evidence was accepted or rejected. This is not a matter that should be left to inference. Especially where a case is determined on the burden of proof.

The Khalsa Centre
35.	The Employment Tribunal had before them a letter dated 26 April 2010 from the President of the Khalsa Centre which is a Gurudwara in South London. He wrote that Amritdhari Sikhs could not (at least in his understanding of the requirements of the Sikh religion) touch meat. This most obviously suggests that at least one official in the religious organisation held the same belief as Mr Chatwal but might also support the inference that (given the status of the author) others attending that Gurudwara might also do so.

36.	The Employment Tribunal make no mention of this letter at all.  The weight to give it was a matter for them but since it at least prima facie supported the contentions of Mr Chatwal it needed to be addressed.

Letter from Sukbhir Singh
37.	The Employment Tribunal had before them a letter from Mr Sukhbir Singh dated 3 June 2010.  He stated that he was a GNNSJ member and that in preparing his letter he had consulted not only other members of GNNSJ but also its chairman.  He wrote that GNNSJ members “do not touch meat”.

38.	The Tribunal deal with his letter in terms at paragraph 9.  They find that it is to be given little weight as the suggestion it contained, that there were 250,000 GNNSJ followers, was exaggerated.  But they do not address the fact that it appears to demonstrate that there is a least one other person who shares Mr Chatwal’s beliefs and that, at very least, it may be inferred from it that there are others who do so even if not in the number claimed by the author.  Of course, if the Employment Tribunal were to hold this evidence not credible at all they are entitled to do so.  But, at least as their judgment is presently expressed, that is not what they have done.

The Experts
39.	Professor Singh and Dr Singh both presented written reports and gave evidence in person. As the Employment Tribunal records, the experts had differing views on whether the touching of meat was prohibited by the religion, as to how many GNNSJ members there were, and as to the practices or beliefs to which those members adhered.

40.	Professor Singh’s evidence appeared to support the contention that a group of persons sharing the same religious belief as Mr Chatwal did exist. His evidence was that 5-10% of Sikhs were Amritdhari Sikhs and that GNNSJ commanded a wide following (with perhaps as many as 125,000 members worldwide).  His reports stated that the “overwhelming majority” of Amritdhari Sikhs refrain from any contact with meat or meat products, that any member of GNNSJ would be “expected” to refrain from all contact – direct or indirect – with meat or meat products and that it would be “difficult to find” Amritdhari Sikhs who would be prepared to handle meat or meat products.

41.	Although Dr Singh’s evidence took a different view on the importance or otherwise of touching meat in Sikhism his reports put the number of GNNSJ members at 1-2 thousand and recorded that of those “some” would feel “polluted” if they were even remotely near meat.

42.	In our judgment it was incumbent on the Tribunal to say whether it rejected or accepted this expert evidence on the extent to which a group of others might hold the same beliefs as Mr Chatwal. The Employment Tribunal recorded (at paragraph 12) that it had been urged by written submissions to prefer Professor Singh’s evidence.  That should have prompted it to identify which it preferred and to record reasons why.  But it also needed to indicate why, assuming it accepted Dr Singh’s estimate that “some” of over 1000 Sikh GSNNJ members in England shared Mr Chatwal’s beliefs that did not constitute a “group”.

43.	For those reasons, this appeal will be allowed and the matter remitted to the same constitution of the Employment Tribunal, if that constitution can practicably be assembled.

44.	For much the same reasons, the cross-appeal will also be allowed. On the time-limit question, we heard closely argued contentions from both parties on the significance or otherwise of Mr Chatwal’s absence from the Council offices for a period of about a year during which time the PCP could not have had any effect on him.  While the Employment Tribunal correctly find that the PCP was still in place right up to his dismissal, they do not deal at all with the Council’s case as to the effect of the period of suspension.  However briefly, it was in our judgment incumbent upon them to do so.  Nothing would be served by our rehearsing here the arguments that were advanced to us or the authorities with which we were pressed.  They will be matters for the Employment Tribunal to whom both the preliminary issues are hereby remitted for reconsideration.