Chatwal v Wandsworth Borough Council (Religion or Belief Discrimination)

For indirect discrimination, a claimant must show that the relevant provision, criterion or practice disadvantages more than the individual claimant. The required cohort need not be established by statistical evidence. Other evidence may demonstrate that a sufficient group shares the relevant religion or belief and would suffer the disadvantage.

An Employment Tribunal must evaluate that evidence expressly and give adequate reasons, particularly where the case turns on the burden of proof. It must identify whether witness, documentary and expert evidence is accepted or rejected and explain the weight given to it. A finding that the belief is personal does not replace that evidential assessment.

Mr Chatwal, a Sikh employee of Wandsworth Borough Council, challenged a requirement that staff using a communal kitchen participate in a cleaning rota, including cleaning a fridge which might contain meat or meat products. He claimed indirect discrimination on grounds of religion or belief and race.

The Employment Tribunal found that the relevant belief was religious, but dismissed the claims because Mr Chatwal had not established that a significant number of other persons shared the belief that meat should not be touched. It found the claims in time. Mr Chatwal appealed against the merits decision and the Council cross-appealed on time limits.

The central issues were whether the Tribunal adequately addressed the evidence of group disadvantage and whether the period during which Mr Chatwal was suspended affected the limitation issue.

1. Appeal allowed and cross-appeal allowed. Both preliminary issues were remitted to the same constitution of the Employment Tribunal, if practicable.
2. Under regulation 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003, and the corresponding provision in section 1(1A) of the Race Relations Act 1976, the claimant had to establish that the provision, criterion or practice placed persons sharing the relevant religion or belief at a particular disadvantage. That required evidence of others, or a group, sharing the relevant belief. The law gave no settled minimum size for that cohort.
3. The Tribunal had no statistical evidence on which it could rely. It therefore had to assess the remaining evidence, including Mr Chatwal’s testimony, letters from religious representatives and the expert evidence. It failed to explain whether it accepted or rejected material parts of that evidence, or why evidence apparently identifying other persons with the same belief did not establish a sufficient group. That failure amounted to inadequate reasoning.
4. The guidance in Eweida indicated that it must be possible to make general statements about a religious group such that an employer ought reasonably to appreciate that a provision may have a disparate adverse impact on it. The Court of Appeal in Eweida had identified competing approaches to the size and composition of the relevant cohort without deciding which approach was correct. The Employment Tribunal was required to apply that guidance to the evidence before it.
5. On limitation, the Tribunal correctly recognised that the kitchen policy remained in force until dismissal. However, it failed to address the Council’s argument that the policy ceased to affect Mr Chatwal when he was suspended. That issue also required reconsideration on remission.

• Employment Appeal Tribunal: allowed Mr Chatwal’s appeal and the Council’s cross-appeal. The issues concerning group disadvantage and time limits were remitted to the same Employment Tribunal constitution, if practicable.
• Employment Tribunal: dismissed the indirect religion or belief and race discrimination claims, while finding that they had been presented in time.