Rafiqul Islam v Loomis UK Ltd

An employment tribunal need not expressly cite Equality Act 2010, section 136, or recite the Igen guidance, provided that its reasons show that it has substantively applied the statutory burden of proof.

The claimant must first establish facts from which discrimination could be inferred in the absence of another explanation. Bare differences in protected status and treatment do not suffice. Statistics may, in an appropriate case, establish a prima facie case, but they must meaningfully support a causal connection between the protected characteristic and the treatment. Small or incomplete figures, without data about the relevant selection pool or its composition, may be incapable of shifting the burden.

The claimant, a Muslim driver/custodian, was selected for redundancy in the second phase of the respondent’s Covid-related workforce reduction after scoring below an agreed breakpoint. The Watford Employment Tribunal dismissed his claims for unfair dismissal and direct religion or belief discrimination. It found that the selection matrix had been applied consistently and that the claimant’s score and selection were fair.

The claimant appealed on one permitted ground. He contended that the tribunal had failed to apply section 136 of the Equality Act 2010 and to consider numerical evidence said to show a disproportionate selection of Muslim employees. The central question was whether the tribunal had erred in its approach to the burden of proof.

1. Appeal dismissed. Read fairly and without an unduly technical analysis, the tribunal’s reasons showed that it had applied the substance of section 136 of the Equality Act 2010. Its express conclusion that there were no grounds on which it could conclude that discrimination played a part in the selection was a finding that the claimant had not established a prima facie case.
2. An employment tribunal does not commit an error of law merely because it omits an express reference to section 136, the Igen guidance, or later authorities. The question is whether it has correctly determined the discrimination claim in substance. The tribunal had considered the claimant’s other alleged indicators of discrimination and found no evidence from which discrimination could be inferred.
3. Statistics can, alone or with other evidence, establish a prima facie case in a suitable case. They must nevertheless be capable of supporting an inference that the protected characteristic caused the impugned treatment. Care is required where the numbers or selection pools are small, where the relevant pool’s protected-characteristic composition is unknown, or where the assumptions underlying statistical analysis have not been established.
4. The figures relied upon did not meet that standard. The evidence showed only that five of 28 employees selected in phase 1 were known to be Muslim. There was no evidence of the religious composition of the pool from which they were selected. The claimant’s later selection as the only Muslim in his department added no evidence that his religion was the reason for selection. The figures had also not been advanced before the tribunal in the form relied upon on appeal.
5. Accordingly, the tribunal was not required separately to consider whether the figures shifted the burden. No material error of law was disclosed.

• Employment Appeal Tribunal: appeal dismissed: [2025] EAT 49.
• Watford Employment Tribunal: by a judgment sent on 20 February 2023, dismissed the claims for unfair dismissal and direct religion or belief discrimination. The holiday-pay claim was withdrawn and dismissed after payment.