Rafiqul Islam v Loomis UK Ltd

The Employment Tribunal found that the claimant was selected for redundancy after scoring below an agreed breakpoint on a scoring matrix and that his dismissal was both procedurally and substantively fair. The claimant alleged direct discrimination on grounds of religion, relying in part on numerical evidence from two phases of redundancies. The Employment Appeal Tribunal held that, although the tribunal did not expressly cite section 136 of the Equality Act 2010, it had in substance considered whether a prima facie case of discrimination was established and concluded it was not. The EAT further held that the statistics relied on by the claimant were neither presented below nor, on their face, sufficient to shift the burden of proof under section 136.

Background and parties: The appellant, employed as a driver/custodian at the respondent's Dunstable depot from 2014, was selected for redundancy in phase 2 of a nationwide redundancy exercise driven by reduced demand. He brought claims for unfair dismissal, direct discrimination on grounds of religion and holiday pay. The holiday pay claim was resolved by payment; the Employment Tribunal dismissed the unfair dismissal and discrimination claims in a judgment sent 20 February 2023.

Procedural history: The appellant appealed to the Employment Appeal Tribunal. Many grounds were struck out on sift. A single ground challenging the tribunal's approach to the burden of proof under section 136 Equality Act 2010 was permitted to proceed.

Nature of the claim / relief sought: The appellant sought a finding of unlawful direct discrimination (and as part of unfair dismissal alleged discriminatory selection) and remedies appropriate to reinstatement/compensation for unfair and discriminatory dismissal.

Issues framed by the court:

• Whether the Employment Tribunal applied the burden of proof provisions in section 136 Equality Act 2010 when deciding the discrimination complaint.
• Whether numerical/statistical evidence about the composition of redundancies was sufficient to constitute the "something more" necessary to shift the burden of proof to the respondent.
• Whether the tribunal’s findings that the redundancy scoring matrix was applied consistently and that the dismissal was fair were vitiated by misapplication of the burden of proof.

Court’s reasoning: The EAT reviewed statutory law and authorities on the two-stage burden of proof approach (including Igen, Madarassy, Laing, Martin, Hewage and Field). It concluded that a tribunal need not use particular formulaic words so long as, in substance, it has considered whether the claimant established facts from which, absent an adequate explanation, discrimination could be inferred. The tribunal's repeated language that no evidence existed "on which we could conclude" discrimination played a part, and its statement that the claimant had failed to discharge the burden of proof, amounted to a substantive application of section 136. On statistics, the EAT held that appropriate statistics can, in a suitable case, shift the burden of proof, but careful analysis is required (pool composition, sample size and statistical significance). The figures relied on by the appellant (five of 28 selected in phase 1 known to be Muslim; the appellant alone Muslim in phase 2 and selected) were either not presented to the tribunal in the required form or were too limited and uninformative to create a prima facie case. The tribunal therefore did not err in failing to treat those numbers as sufficient to shift the burden.

Appeal dismissed. The Employment Tribunal, read fairly, had applied the approach required by section 136 Equality Act 2010 by considering whether the claimant had established facts from which, in the absence of an adequate explanation, discrimination could be inferred, and concluded he had not. The numerical evidence relied on by the claimant was neither presented below in a way capable of shifting the burden nor, on the evidence before the EAT, sufficiently probative to do so.

The claimant's case was heard at first instance by the Watford Employment Tribunal; judgment dated and sent 20 February 2023 dismissing unfair dismissal and direct discrimination claims. The claimant appealed to the Employment Appeal Tribunal; the appeal was sifted (Judge Keith) and at a rule 3(10) hearing Judge John Bowers KC allowed a single ground (failure to apply section 136) to proceed. The EAT delivered judgment in [2025] EAT 49 on 28 February 2025 dismissing the appeal.