I did say that I wouldn't use this site any more as a blog, but just occasionally there are news stories that are worth some reflection. 

The Guardian reports that Aishah Azmi "the British Muslim teacher" (I think they mean classroom assistant), "who refused to remove her veil in a primary school when male colleagues were present lost her discrimination test case yesterday, but won £1,100 for victimisation in the way the dispute was handled."

It's hard to know what the tribunal had in mind: the judgment has not been reported by any of the legal reporting services, and ET judgments only get written up relatively rarely. But a few thoughts do spring to mind.

It is an unusual for a tribunal to find that an employer had not discriminated, either directly, or indirectly, but had victimised the claimant. The only way to make sense of that distinction is to assume that the tribunal believed that the school had not discriminated against Ms. Azmi, by requiring her to remove her niqab, but had treated her less favourably afterwards, when she complained about the decision.

In other words, if she suffered a detriment (such as dismissal) then this happened because the school - in lay language - punished her for complaining about their original decision. 

The other thing that struck me is that I couldn't think of a single individual who had actually been successful in a case brought under the Employment Equality (Religion or Belief) Regulations. So I thought I'd check.

One of the main electronic databases Westlaw seems to suggest that there have been as many as 17 reported decisions on the Regulations. On close inspection, however, this number is inflated. Most of the cases it brings up are ones where religion was not really at issue: eg Way v Crouch: a case to assess the merits of a sex discrimination award; Wong v Igen Ltd: a series of joined cases before the Court of Appeal, concerned with race and sex discrimination, and with the question of when the burden of proof shifts in any direct discrimination claim; Dunnachie v Kingston upon Hull City Council: a House of Lords case on whether damages can be awarded by tribunals for injury to feelings; Ghaidan v Godin-Mendoza: a case on same sex tenancies.

There are only five reported cases in which an employee has argued before a tribunal that they suffered religious discrimination, and in every single case, the employee's claim has been unsuccessful. 

My summaries of the cases are pretty rushed, but any reader could check these online. Where there is an EAT decision for example, the full text is available on the EAT website.

1. Mohmed v West Coast Trains Ltd: EAT: Muslim Indian employee claimed harassment over employer's treatment of his long beard: employee lost.

2. Babula v Waltham Forest College: EAT: employee complained about radical Islamic politics of a previous lecturer, later resigned, claimed unfair constructive dismissal: employee lost

3. Ennever v Metropolitan Police: EAT: policewoman claimed discrimination on grounds of race and religion; timed out: employee lost

4. Lothian Buses Plc v Nelson: EAT: bus driver claimed unfair dismissal on grounds of religion, pre-hearing to strike out, then appeal: employee lost

5. Copsey v WWB Devon Clays Ltd: CA: Christian employee dismissed after refusing to accept Sunday working: employee lost 

Of these five, even (3) and (4) were not really about religion, but about whether a claim had been submitted to the tribunal within the deadlines (three months, with a possible extension to six months) and (2) was a pretty unusual case, in that it was not the employee's religion or belief that made this a religion case, but the beliefs of his predecessor.

That just leaves Mohmed and Copsey.

Mohmed in origin was a case about a man who was asked by his employer to trim and neaten his beard. The employee lost on the facts - the court did not believe that the employer had been unreasonable. By the time the case went to appeal, the issues were dry and remote: where an ET comes to the right decision but fails to provide sufficient reasons, is that enough for the EAT to require a re-hearing? (here, it was not).

As for Copsey, this is really the only case we have to date on whether an individual can claim religious discrimination in the sorts of situations where (depending on the facts) they might alternatively be able to claim discrimination on grounds of gender or race.

This is Westlaw's summary: "The appellant (C) appealed against the decision that he had been fairly dismissed after he had refused to accept regular Sunday working because of his Christian beliefs. C had been dismissed by his employer (D) after he had refused to agree to a contractual variation in his working hours so as to provide that he should work a seven day shift including a Sunday. D had introduced the new shift pattern to increase production. C was a Christian who sought to manifest his religious beliefs by observing Sunday as a day of rest. Although C was prepared to help D on Sundays in an emergency he refused to accept regular Sunday working. C brought a claim against D in the employment tribunal under the Employment Rights Act 1996 claiming unfair dismissal and breach of the Human Rights Act 1998 Sch. 1 Part I Art. 9, and arguing that D had failed to make "reasonable accommodation" for his religious beliefs regarding Sunday. The tribunal held that in the circumstances D had done everything it reasonably could to accommodate C's desire not to work on Sundays and that C's dismissal was not on account of his religious beliefs but was for some other substantial reason, namely his refusal to accept a change to the new seven day shift pattern. The circumstances of C's dismissal did not engage Art. 9 or if they did there was no breach. The Employment Appeal Tribunal dismissed C's appeal."

The Court of Appeal dismissed Copsey's case using intemperate language: arguing for example that if the employer's working practices and the employee's religious convictions were incompatible the employee was free to resign in order to manifest his religious beliefs.

It is extremely unlikely that in an analogous situation - for example if a woman working in a factory was told "we require all members of staff to wear wet t-shirts" - that the court would find that this was reasonable behaviour on the part of the employer, and that the employee could find a full redress for their grievances simply by leaving the job.

Admittedly Copsey was heard under the pre-2003 legislation (hence the reference in the Westlaw quote above to rights under the HRA rather than the 2003 legislation) but it was a Court of Appeal case, it has authority, and the Regulations were in the mind of the judges, even if they were not fundamental to the decision. 

(A note on which cases get selected for reporting: almost all EAT cases, but only a small minority of ET cases).

If Ms Azmi takes her case to appeal and loses, then we will be in an odd situation: there will still not have been so much as one single successful reported case brought by any employee under the Regulations, even though these are now three years old.

If you have a law which has never been followed, then in what sense is it a law at all?