The EAT has allowed an appeal of the case of Chatwal v Wandsworth Borough Council against a decision of the Tribunal that a requirement to clean a communal fridge did not amount to indirect religious discrimination against Sikhs, on the basis that the claimant could not show that a significant number of others of the same religion shared his belief that he could not touch or come into contact with meat, and so he could not establish "group disadvantage". The EAT, in overturning the decision, held that there was in fact evidence that some other Sikhs shared this belief, and that there was no requirement in the Employment Equality (Religion or Belief) Regulations 2003 for a particular size of group to be put at a disadvantage.
In May 2008, the Council introduced a requirement that all staff clean the fridge in the communal kitchen. Mr Chatwal declined to participate, as it was likely that while sharing the cleaning duties he would come into contact with meat or meat products, which he was forbidden from touching, due to his beliefs as an Amritdhari Sikh. The Council did not therefore let him use the fridge, and Mr Chatwal brought a claim of indirect religious discrimination. The tribunal rejected Mr Chatwal's claim on the basis that he had failed to show that a significant number of others of the same religion held the belief that touching meat was forbidden and that he could not therefore establish a "group disadvantage".
The EAT has allowed the appeal on the basis that the Tribunal had wrongly interpreted the Employment Equality (Religion or Belief) Regulations 2003 when ruling that, for indirect religious discrimination to be proved, there must be a "group". The Regulations use the less stringent test of "persons", meaning that, arguably, if Mr Chatwal could prove that at least one other Sikh believed that touching meat was forbidden then he had a relevant claim. The term "group disadvantage" comes from the Court of Appeal decision in Eweida v British Airways, which held that a disadvantage to a single employee was not sufficient for an indirect discrimination claim. However, this term does not reflect the language of the Regulations. The EAT has remitted the case back to the original tribunal for further consideration.
Impact on employers
- There is no precise guidance on how large the group put at a disadvantage must be for an indirect discrimination claim to succeed. It is clear from Eweida that the Claimant alone will not be sufficient. However, what this case tells us is that, similarly, it is not necessary to establish that all, or even a majority, of individuals holding the protected characteristic would be put at the disadvantage, provided the claimant is able to lead some evidence that there are at least one or more others who would be affected similarly.