Indirect Religious Discrimination
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19.7.2011
Under the Equality Act 2010, indirect religion or belief discrimination occurs where: · A applies to B a provision, criterion or practice (PCP). In the case of Chatwal v Wandsworth Borough Council, the EAT considered a tribunal’s decision that a significant number of Sikhs did not share the claimant's belief that touching meat was forbidden. Mr Chatwal was a Sikh employed by Wandsworth Borough Council. The Council introduced a new requirement that staff using the communal kitchen should participate in a rota for cleaning the kitchen surfaces and the fridge. As a result of this, staff might from time to time come into contact with meat or meat products which had been left in the fridge. Mr Chatwal refused to comply with the fridge cleaning requirement on the basis of his belief as an Amritdhari Sikh that touching meat was forbidden. He was subsequently not allowed to use the communal fridge. Mr Chatwal brought claims for indirect religious and race discrimination and a pre-hearing review was held to decide, among other things, whether the PCP (to participate in a rota to clean kitchen surfaces and the fridge) amounted to indirect discrimination because his religion did not allow him to touch meat. Mr Chatwal gave evidence that members of the branch of Sikhs to which he belonged (or at least some of them) shared his belief that they could not eat, touch or prepare meat. An employment tribunal decided that Mr Chatwal's claims failed as he could not show that a significant number of others of the same religion shared the relevant belief i.e. he could not establish "group disadvantage". The tribunal concluded that there was nothing in Sikh scriptures or the Sikh Code of Conduct to prohibit the touching of meat and, although his specific sub-group prohibited the eating of meat, it was silent on the question of whether touching meat was forbidden. The EAT allowed Mr Chatwal’s appeal on the basis that the 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 several pieces of evidence (including a letter from the President of a Sikh place of worship and expert independent evidence) which pointed towards a shared belief that touching meat was forbidden. It was not clear from the tribunal's judgment whether it had accepted or rejected certain evidence and what weight it had attached to it. The EAT commented that the tribunal's task 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". The tribunal appeared to be focussed too much on the idea that there ought to be a significant number of persons sharing the claimant's religious belief, rather than focusing on the fact that there was evidence that the belief was shared by some others. The legislation only requires there to be "persons" other than the claimant who share that belief. This case also raises a point previously dealt with at Court of Appeal level in relation to whether, in order for indirect religious discrimination to occur, it must be possible to make general statements about a religious group such that an employer ought reasonably to appreciate that a particular policy might have a negative impact on that group. The question is how can it be said that in matters of religion, where the group in question could be as small as three people, that the employer ought to have a reasonable awareness of their practices or beliefs and the impact any PCP could have on them?
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