Veitch Penny LLP - Exeter | Crediton, Devon

Case

Mr M Mohmed v West Coast Trains Ltd
Employment Appeal Tribunal - (30th June 2006)

Issues

(1) The Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”)
(2) Burden of Proof
(3) Discrimination Questionnaires

Facts

Mr Mohmed was employed by West Coast Trains as a Customer Services Assistant on 4th June 2003. He was a Muslim of Indian origin whose religious beliefs required him to wear a beard of at least one fist’s length. He was dismissed by his employer on the basis of his lack of enthusiasm. Mr Mohmed claimed that he had been dismissed because of his beard and consequently this was direct discrimination on grounds of his religion, contrary to the Regulations.

Mr Mohmed brought several claims of race and religious discrimination which were, in the first instance, unsuccessful. The tribunal found that he had been unable to satisfy the burden of proof test for the onus to pass to West Coast Trains Ltd to disprove that discrimination had occurred. In summary, the burden of proof test means that an employee must prove facts from which the tribunal can conclude, in the absence of an adequate explanation, that the employer had committed an unlawful act of discrimination.

Once the employee satisfied the test, the burden of proof would shift to the employer to prove that he did not commit the unlawful act.

In his appeal, Mr Mohmed argued that in assessing whether he had passed the burden of proof test, the tribunal should only have considered the facts he had asserted and not those put forward by the employer. He also appealed on the basis that the tribunal had appeared to fail to take into account the employer’s failure to respond to his statutory discrimination questionnaire within the required time period.

Decision

The Employment Appeal Tribunal (EAT) dismissed Mr Mohmed’s appeal. It found that the tribunal had been entitled to take into account the employer’s evidence and confirmed that there were not enough facts to show a prima facie case of religious discrimination. The EAT noted that the evidence had shown that the employer’s uniform policy had required Mr Mohmed to keep his beard neatly trimmed and smart and that his managers had agreed that this could be done by keeping his beard at a fists length as long as it was trimmed tidily. This was also the case for another of the employer’s employees. The EAT concluded that these facts showed the employee was not being discriminated against but merely being asked to be smart in accordance with company policy.

Comments

This is the first EAT decision to deal with the Regulations which came into force on 2nd December 2003. The case reminds employers that in all cases of discrimination it can be relatively easy for the employee to find enough evidence to show a prima facie case of discrimination. One step that employers can take is to make sure that their policies and procedures are regularly reviewed to ensure they are up-to-date and not indirectly discriminatory. These policies should then be made available to all employees and managers. In this case the employer’s policy on uniforms required employees to keep their beards neatly trimmed and smart but had then acknowledged the emphasis needed to be on smart rather than trimmed.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.