21st July 2011
Employment Appeal Tribunal
Employment Appeal Tribunal Considers Indirect Religious Discrimination Issue
In the recent case of Chatwal v Wandsworth Borough Council the Employment Appeal Tribunal (EAT) held that it was wrong, in a claim involving indirect religious discrimination, for an Employment Tribunal to find that a significant number of Sikhs did not share the claimant’s belief that touching meat was forbidden, especially as there was clear evidence that some other Sikhs did indeed share the same belief as the claimant.
The facts of the case were that Mr Chatwal (the claimant) was of the Sikh faith and was employed by Wandsworth Borough Council (the Council) between 2002 to 2009 as a customer services adviser. In May 2008, the Council introduced a new requirement that staff using the communal kitchen should, as a condition of continued use, participate in a rota for cleaning the kitchen surfaces and the fridge. As a result, staff might from time to time come into contact with meat or meat products left in the fridge. Mr Chatwal declined to comply with the fridge cleaning requirement on the basis of his belief as an Amritdhari Sikh, which proclaimed that touching meat was forbidden. As a consequence, Mr Chatwal was no longer allowed use of the communal fridge.
Mr Chatwal brought claims against the Council for indirect religious and race discrimination. Before the main hearing of the case took place the Employment Tribunal held a pre-hearing review in order to establish whether the Council’s practice of requiring all employees to participate in a rota to clean kitchen surfaces and the fridge amounted to indirect discrimination.
During the pre-hearing review, Mr Chatwal gave evidence that “Sikhs who have taken Amrit (Holy water) vow never to eat, touch or prepare meat” and that he had taken Amrit at the age of 13. He also gave evidence that he was a member of the Guru Nanak Nishkam Sewak Jatha (GNNSJ) branch of the Sikh community and that this sub-group, or at least some members of it, shared his belief.
The Employment Tribunal ultimately concluded that that there was nothing in Sikh scriptures or the Sikh Code of Conduct to prohibit the touching of meat and, as such, found that Mr Chatwal was unable to establish a “group disadvantage” and therefore his claim for indirect discrimination failed. Mr Chatwal appealed to the EAT on the basis that the original findings of the Employment Tribunal were perverse.
The EAT allowed the appeal and remitted the case back to a fresh Tribunal for further consideration. The EAT found that the Employment Tribunal had failed to explain its findings that a significant number of others did not share the relevant belief when it had been presented with evidence which pointed towards a shared belief that touching meat was forbidden (including expert evidence which supported the contention that there was a group of persons sharing the same religious belief as Mr Chatwal).
The EAT also stated that it was not clear from the original Tribunal’s judgment whether it had accepted or rejected certain evidence and what weight it had attached to it. While finding that a claim by a GNNSJ member, that there were 250,000 GNNSJ followers, to be “exaggerated”, the Tribunal did not address the fact that it appeared to demonstrate that there was at least one other person who shared Mr Chatwal’s belief. Accordingly, the EAT expressed the view that it might be inferred from that evidence that there were others who shared Mr Chatwal’s belief.
The EAT commented that the Employment Tribunal’s task was not helped by the fact that there is no consensus in law as to how large (or small) the group must be in order to suffice for the purpose of establishing a claim for indirect discrimination.
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