Indirect discrimination occurs where an employer applies a “provision, criterion or practice” (PCP) that puts people who share a protected characteristic at a particular disadvantage In the context of religion and belief discrimination, persons who share a protected characteristic are those who share the same belief that is affected by the PCP, rather than simply the members of a particular religion as a whole.
This sometimes raises a difficulty because, even within a well-established religion, the actual beliefs of individuals may vary widely. Indeed some religious beliefs may be unique to the individual who holds them.
Mr Chatwal was employed by Wandsworth Borough Council from 2002. In 2008, the council introduced a requirement that staff in his department who used the communal kitchen should participate in a rota for cleaning the kitchen surfaces and the fridge.
Mr Chatwal, a Sikh, told his employer that, while he was happy to clean other areas in the kitchen, he would not comply with the requirement to clean the fridge, because his religious beliefs did not allow him to come into contact with meat or meat products. Because he would not participate fully in the kitchen rota, Mr Chatwal was no longer allowed to use the kitchen. He complained of indirect race discrimination and indirect religious discrimination. Mr Chatwal is a member of a revivalist organisation within the Sikh community known as the “GNNSJ branch”.
He submitted that having taken amrit (holy water),it was an aspect of that subgroup of the faith that they should not come into contact with meat or meat products. In this case, the court had to decide how that principle should be applied in relation to a Sikh employee whose belief that he should not touch meat was not part of the mainstream Sikh religion. Eventually the case came in front of the Employment Appeal Tribunal, which considered whether or not Mr Chatwal had discharged the burden of showing that others shared his religious belief in relation to touching meat.
It observed that there is no consensus in law as to how large or small this group or cohort of others must be to satisfy the provision. In Mr Chatwal’s case the court noted that he had submitted a variety of evidence to the tribunal, including evidence that he had taken amrit at a ceremony with 40 to 50 other Sikhs doing the same and two experts on Sikhism.
They had differing views as to the number of GNNSJ members and on their beliefs and practices with regard to meat. One indicated 125,000 worldwide and suggested that the overwhelming majority of Amritdhari Sikhs refrain from any contact with meat, while the other estimated more than 1,000 in England, and said that some of these would feel “polluted” if near meat. Allowing Mr Chatwal’s appeal, the EAT said the tribunal had failed to indicate why it took the view that those people did not constitute a group for the purposes of the discrimination complaint and remitted the case back to the same tribunal for reconsideration.
From a legal viewpoint, this case illustrates an important difficulty in applying principles of indirect discrimination in the context of religion and belief. Belief is a subjective matter, and the strength and nature of the beliefs of individuals may vary widely, even within a group of people who identify themselves as being of the same religion. As a result, it may be difficult to assess how many people actually share a particular belief that is not part of the official or mainstream doctrine of a particular religion.
From a practical point of view, investigate, consider the facts, consult with those affected by a PCP and, if possible and appropriate, take reasonable steps to make adjustments.
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