Hello and welcome back to this week’s case of the week. If you missed our April newsletter, click here to read it. This week we look at the case of Mr Rafiqul Islam v Loomis UK Ltd.

The Claimant, who was employed as a driver and custodian by the Respondent, was selected for redundancy during the second phase of a major downsizing programme in 2020. Due to the pandemic and a shift in cashless transactions, the Respondent had to reduce its workforce by nearly 50%. Phase 2 of the redundancy process involved scoring employees using an agreed matrix, with dismissal of those who scored below a set “breakpoint”.

The Claimant failed to meet the threshold and was dismissed. He challenged the process, alleging that his dismissal was both procedurally unfair and motivated by religious discrimination.

The Employment Tribunal (ET)

The ET accepted that the redundancy situation was genuine, and that the scoring matrix was agreed with trade unions.

The Claimant’s score fell below the redundancy threshold, and the Tribunal found no evidence of unfair application.

The Tribunal concluded that there was no evidence to suggest that the Respondent viewed the Claimant’s religion (or his use of prayer facilities) as problematic.

The Claimant also relied on supposed statistics, such as the fact that five out of six employees made redundant in one part of the depot during phase 1 were Muslim. However, these statistics were found to be both incomplete and insufficient.

The ET ultimately rejected the claim for unfair dismissal and direct religious discrimination, concluding the dismissal was fair and not based on the Claimant’s religion.

Employment Appeal Tribunal (The EAT)

On appeal, the Claimant stated that the ET failed to accurately apply the burden of proof under section 136 of the Equality Act 2010. He argued that the Tribunal should have considered whether the statistics he raised shifted the burden onto the Respondent to prove there was no discrimination.

Section 136 provides that, where there are facts that could be inferred, the burden shifts to the employer to prove otherwise.

Although the Tribunal did not expressly cite section 136, the EAT held it had applied the correct approach. The ET examined whether there were facts that could lead to a conclusion of discrimination and determined there were none.

The EAT reiterated that tribunals are not required to follow a rigid formula. Where they assert that there is no evidence of discrimination, failing to reference burden-shifting provisions does not constitute an error of law.

Takeaway Points

The EAT noted that the Claimant based his belief in discrimination on his “feeling” rather than solid evidence. Employers should be aware that subjective beliefs alone do not shift the burden under the Equality Act.

The Respondent’s use of a union-agreed scoring matrix and documented scoring decisions were crucial in defending the claims. The Respondent’s detailed evidence, including reasons for scores and consultation records, helped defend claims of biasness and religious discrimination. Employers should ensure scoring decisions are well-evidenced and contemporaneously recorded.

This decision highlights the high threshold required to shift the burden of proof in discrimination cases. It serves as a reminder that employers can defend against such claims by applying fair redundancy procedures, keeping clear records, and ensuring objective reasoning in dismissal decisions.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.