MS N HUSSAIN v MIDLAND COSMETIC SALES PLC & OTHERS [2002] UKEAT 915_00_0905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 915_00_0905Case No Appeal No. EAT/915/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS N HUSSAINAPPELLANTMIDLAND COSMETIC SALES PLC & OTHERSRESPONDENT
Before
Mr Recorder BurkeDate 9 May 2002
[1]APPEARANCES For the Appellant MR AHMED THOMSON (Of Counsel) Instructed by: Commission for Racial Equality Legal Services Dept 3rd Floor, Lancaster House 67 Newhall Street Birmingham B3 1NA For the Respondents MR KEVIN J O'DONOVAN (Of Counsel) Instructed by: Messrs Eaton Ryan & Taylor Solicitors Lombard House 145 Great Charles Street Birmingham B3 3LP MR RECORDER BURKE QC: This is an appeal by Miss Hussain against the decision of the Employment Tribunal sitting at Birmingham, chaired by Mr. van Gelder and sent to the parties with extended reasons on 8 th June 2000, whereby the Tribunal dismissed Miss Hussain's complaint that she had been subjected to indirect race discrimination by Midland Cosmetic Sales Limited ("MCSL") and their production manager, Mr. Stannaway. Mr. Stannaway and MCSL were jointly represented; so far as this appeal is concerned, no suggestion has been made that they should be treated separately; we will not, therefore, deal with Mr. Stannaway's position as a party to the proceedings separately from that of MCSL. The Third Respondent, Tempstaff Limited, an employment agency, was dismissed from the proceedings following settlement and has played no part in the appeal. The Facts[2]In July 1999 Miss Hussain was sent by Tempstaff Limited to work as a packer at MCSL's packing plant in Birmingham. MCSL regularly used agency staff between June and September in each year to pack Christmas gift sets; the Tribunal found that between 50 and 60 staff would be supplied over a 12 months' period to MCSL by Tempstaff.[3]As a result of a risk assessment carried out by Mr. Stannaway of the machinery in the packing plant, it became clear that loose garments and hair created a potential hazard; and a policy was adopted of requiring all employees to wear protective clothing into which their hair or scarves could be tucked. Permanent staff were provided with a canvas cap similar to a baseball cap; temporary staff were provided with a disposable elasticated canvas cap similar to a shower cap. Supervisors and managers had other headgear. All were provided with a three quarter-length single breasted jacket.[4]The Tribunal accepted that, when, in November 1999, MCSL replied to a questionnaire submitted to them under Section 65(1)(b) of the Race Relations Act 1976, MCSL had 8 female employees of Pakistani origin working as production operatives or packers. MCSL said in their answers to the questionnaire that in the previous 3 years 25% of newly recruited non-agency employees were of Pakistani origin. This was not a direct discrimination case and no suggestion was made that MCSL were guilty of direct discrimination in their recruitment of or provision of work to any particular racial or ethnic group.[5]Miss Hussain is a practising Muslim of Pakistani ethnic origin; when she presented herself to MCSL's packing plant for work she was wearing a headscarf which covered her head and the sides of her face and came down over her shoulders and chest. On arrival she was seen by Mrs. Rahman, a supervisor, who is also a practising Muslim of Pakistani ethnic origin. Mrs. Rahman asked Miss Hussain to remove her scarf and to wear the protective cap and jacket which we have described. Miss Hussain declined to do so, in accordance with her particular religious beliefs. Mrs. Rahman reported this to Mr. Stannaway who said that Miss Hussain must wear the cap; Miss Hussain insisted that she had to cover her hair with the scarf. Mrs. Rahman again reported to Mr. Stannaway who said that Miss Hussain must wear the cap for safety reasons; Mrs. Rahman made it clear to Miss Hussain that she had to remove her scarf and wear the cap. Miss Hussain said that she would take the matter up with Tempstaff and left. She subsequently issued her present claim.[6]The Tribunal found as a fact, contrary to Miss Hussain's case, that the reason for the requirement to wear protective clothing imposed upon Miss Hussain was health and safety and not because Miss Hussain, if wearing a headscarf, would have looked out of place to customers visiting the premises, as from time to time they did unannounced, to check upon standards of hygiene.[7]Miss Hussain gave evidence that the practice of Hijab i.e. the wearing of a headscarf in accordance with her religious beliefs required her to wear a scarf of the kind described earlier in this judgment in the presence of all men to whom she was not related; she said that 80% of her friends practised Hijab in this manner and that a high proportion of the female Muslim Pakistani community practised Hijab. Her evidence was not supported by any independent evidence and was described by the Tribunal as having inherent contradictions and as anecdotal. Mrs. Rahman's evidence, by contrast, was that the majority of practising Muslim women of Pakistani origin did not wear headscarves except when the Quran was being read in their presence or when they were at prayer. In her experience no other female who worked for MCSL had difficulty in complying with the safety policy; they either removed their headscarves or tucked them in to the protective clothing provided. Some of them used the same type of headscarf as that worn by Miss Hussain, others wore a shorter version.[8]The Tribunal concluded, at para. 7 of the Extended Reasons, that Miss Hussain's : "Interpretation of the Hijab requirement was not necessarily in accordance with the provisions of the Holy Quran but that nevertheless it represented a form of relatively strict adherence to its requirements" and that "there were other women of Pakistani ethnic origin who were also practising Muslims who were less strict in their observance of the requirements for Hijab and had no difficulty in complying with a work place requirement to either remove their headscarf or to tack it inside their protective jacket".[9]The Tribunal further found, at para. 8.2 of the Extended Reasons, that MCSL and Mr. Stannaway generally took into account the specific needs of employees from ethnic minorities and were happy to cater for their specific requirements in matters of religion and culture. It was, no doubt, for this reason that in other cases women of Pakistani ethnic origin had been allowed, if they did not want to remove their headscarves, to tuck them in so that the danger from loose hair or from loose clothing was eliminated. However in this case Mrs. Rahman did not offer that choice to Ms. Hussain; she had been instructed to report difficulties to Mr. Stannaway who, on this occasion, merely said that the protective cap had to be worn. The Tribunal concluded that it may well have been the case - which as a matter of common sense we take as a finding that it probably would have been the case - that if Mr. Stannaway had spoken to Miss Hussain they could quickly have resolved the matter and made satisfactory arrangements; but this did not happen in Miss Hussain's case. She, unlike others who had not wished to remove their headscarves, was not given the choice of a compromise solution. The Issues[10]The Tribunal set out at para.7.1 of their reasons the definition of indirect discrimination in s.1(1)(b) of the Race Relations Act 1976 and the definition of "racial group" in s.3 of the Act. They also referred to section 7 of the Act which brings contract workers into the earlier discrimination provisions; no issue arose or now arises as to that section;.[11]The Tribunal had to decide two issues arising from those statutory provisions :-(1) did MCSL apply to Miss Hussain a requirement or condition which they applied equally to persons not of the same racial group as Miss Hussain but which was such that the proportion of persons of the same racial group as Miss Hussain who could comply with it was considerably smaller than the proportion of persons not of that racial group who could comply with it? and, if so,(2) had MCSL shown the application to Miss Hussain of that requirement or condition was justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it was applied. There was no dispute that, if Miss Hussain succeeded on these two issues, the application to her of the relevant requirement or condition was to her detriment because she could not comply with it.[12]It was accepted on behalf of MCSL that they had applied to Miss Hussain a requirement or condition that she should remove her headscarf in order to wear the protective headwear on which they insisted. Thus the first issue became narrowed to this question - did that requirement or condition have a disproportionate impact in terms of those who could comply with it as between persons of Miss Hussain's racial group and persons not of that racial group? Justifiability[13]The Tribunal in their conclusions first addressed the justifiability issue. They concluded, at para.8(2) of their reasons, that MCSL had failed to seek a possible solution to the problem which had arisen when Miss Hussain was asked to remove her headscarf, that there was scope for the finding of such a solution without undue difficulties - as had occurred, they found in para. 4.12 of their reasons, in other cases - that it may well have been the case that if Mr. Stannaway had spoken to Miss Hussain the problem would have been speedily resolved without Miss Hussain having to remove her headscarf and that the stance taken in Miss Hussain's case of insistence on the removal of the headscarf was not justifiable.[14]This factual conclusion by the Tribunal has not been attacked by MCSL. Disproportionate Impact[15]The Tribunal concluded, at para. 8(6) of their reasons, that Miss Hussain had not shown that the requirement imposed on her had a disproportionate impact so as to amount to indirect discrimination. They reached that conclusion by this route :(i) they found, uncontroversially, that there were different schools of thought and different practices in the observance of Hijab.(ii) they concluded that the comparison to be made was between female employees of Pakistani ethnic origin and female employees not of that origin.(iii) they found that the female staff referred to in MCSL's answers to the questionnaire were likely to have been Muslims of Pakistani origin; they inferred that in addition to those 8 staff there had been others of that origin who had removed their headscarves; but at best Miss Hussain was 1 of 9 known female staff of Pakistani ethnic origin 8 of whom had complied with MCSL's requirement.(iv) Thus the Tribunal concluded, looking at the evidence at the highest in Miss Hussain's favour, almost 90% of the Pakistani ethnic origin group could comply; and 100% of the non-Pakistani ethnic origin group could comply.(v) This was not sufficient to establish a disproportionate impact. The Submissions[16]Mr. , at the outset of his submissions on behalf of Miss Hussain, began to put forward a detailed argument based on Article 9 of the European Convention of Human Rights, incorporated into domestic law with effect from 21 October 2000 by the Human Rights Act 1998, which provides for a right in everyone to freedom of thought, conscience and religion and to manifest his religion or belief in worship, teaching, practice and observance. It became clear as the argument developed that Mr. O'Donovan, on behalf of MCSL, had not had sufficient notice that Mr. Thomson was proposing so to argue and that the point was not expressly covered by the Notice of Appeal. There was plainly an issue as to the possible impact of Article 9 and as to retrospectivity. We decided to hear the appeal without entering upon this argument and, if at the end of the hearing, it appeared to be relevant and necessary to consider whether to allow the argument then to proceed. In the event for reasons which will appear below it has not been necessary to do so; and we say no more about this argument which was only partly developed before us by Mr. Thomson and was in the circumstances not responded to by Mr. O'Donovan.[17]Putting on one side, therefore, any argument based on the 1998 Act Mr. Thomson, on behalf of Miss Hussain, submitted that the Tribunal's approach to the issue of disproportionate impact was flawed because they erred in treating Miss Hussain as the one isolated female of Pakistani ethnic origin who could not comply with MCSL's requirements and in treating the other eight female staff of Pakistani ethnic origin as able to comply with those requirements. The correct position, he submitted, was that Miss Hussain alone had been subjected to a requirement that she remove her headscarf; the other 8 had been given a choice of removing their headscarves or continuing to wear them and the protective clothing with the loose parts secured so as to avoid risk. The Tribunal did not consider or make findings as to how many of the other 8 females of Pakistani ethnic origin would have found the requirement that they remove the headscarf, as opposed to the requirement that they either remove the headscarf or secure it so as to avoid risk, one with which they could have complied.[18]Alternatively, Mr. Thomson submitted, if the Tribunal did seek to arrive on the evidence at a proportion of females of Pakistani ethnic origin who could comply with a requirement to remove the headscarf as opposed to a requirement either to remove the headscarf or to wear it with the protective clothing and secured so as to avoid risk, they did so mistakenly on the basis that the other 8 females of Pakistani ethnic origin had been able to comply with the former as opposed to the latter requirement and had removed their headscarves, contrary to the Tribunal's earlier finding that those other 8 had either removed their headscarf or made them safe.[19]By either route, Mr. Thomson submitted, the Tribunal had erred; it ought on the findings of primary fact to have found that the percentage of females of Pakistani ethnic origin who could comply with the requirement that the headscarf should be removed was much lower than the 100% of the comparator group not of that ethnic origin who, on the Tribunal's findings could comply with that requirement.[20]Mr. Thomson referred us to the decision of the House of Lords in Mandla v. Lee (1983 IRLR 209 ) in which Lord Fraser of Tullybelton, with whom Lord Edmund-Davies, Lord Roskill and Lord Brandon of Oakbrook agreed, having earlier in his speech held that Sikhs constituted a racial group, said at para. 20 with reference to the words "can comply" in Section 1(1)(b)(i) of the 1970 Act :- "The word "can" is used with many shades of meaning. In the context of s.1(1)(b)(i) of the 1976 Act it must, in my opinion, have been intended by Parliament to be read not as meaning "can physically" so as to indicate a theoretical possibility but as meaning "can in practice" or "can consistently" with the customers and cultural conditions of the racial group." He went on to conclude that the Sikh applicant who was not allowed into school if he wore a turban could not, in the relevant sense, comply with the school's no turban rule.[21]Mandla v. Lee was applied by the Court of Appeal in Commission for Racial Equality v. Dutton (1989 1 QB 783), although the principle to which we have referred did not arise in that case, on which Mr. Thomson relied as authority for the proposition that the substantial disproportion issue must be tested by the situation at the date at which the requirement has to be fulfilled i.e. in this case July 1999; see per Nicholls LJ. at p.803E to G.[22]Mr. Thomson also submitted that the Tribunal had fallen further into error by considering substantial disproportion on the basis of the 8 female Muslim employees of Pakistani ethnic origin together with Miss Hussain and treating them together as the group to be compared with the comparator group of employees who were not of that ethnic origin although the events relating to Miss Hussain took place in July 1999, when on the evidence there were only a few and not 8 employees within the ethnic group; the 8 were employed later in the year, in October or November when MCSL completed the questionnaire under Section 65 of the 1976 Act which identified them. He pointed out that, if in July there had only been 5 female employees in the ethnic group, including Miss Hussain, then 20% of the group would not have been able to comply with the requirement imposed upon Miss Hussain - a substantial disproportion, he submitted, on any view.[23]Mr. Thomson next submitted that while the Tribunal had correctly applied the principle in Mandla v. Lee in considering the position of Miss Hussain, they had not done so in the case of the other 8 female employees within the ethnic group. He further submitted that in Mandla v. Lee the House of Lords had regarded 1 in 6 as a sufficient proportion and that in London Underground v. Edwards (No. 2) (1998 IRLR 364) the Court of Appeal and the EAT had upheld the Tribunal's conclusion that, where 95.2% of women could comply with new rostering arrangements and 100% of men could so comply, the former was a considerably smaller proportion. However, Mr. Thomson acknowledged that, at para. 29 in that case, Potter LJ had declined to lay down any rule of thumb as to what percentage could be reasonably regarded as "considerably smaller" than the higher percentage and indicated that, because of the wide field and variety of situations in which the provision of s.1(1)(b) fall to be applied, the circumstances and arguments before an adjudicating Tribunal are bound to differ as to what in a particular case amounts to a "considerably smaller" proportion. It is interesting to observe that Potter LJ had a case such as the present in mind; he said :
"If a figure were to be selected in the field of employment it would be likely to vary according to the context and in particular as between a case where the requirement or condition is applied on a national scale in respect of which reliable supporting statistics are available and those where it is applied in relation to a small firm or an unbalanced workforce where the decision may have to be made on far less certain evidence and to a large degree upon the basis of the Tribunal's own experience and assessment applied to such figures as are available"
. Mr. Thomson realistically accepted that the figures in these cases were examples and did not establish a principle of law and that while it would have been possible for the Tribunal to have found for Miss Hussain on this issue, on the figures which they used or on the basis of 1 in 5 who could not comply, the Tribunal was not or would not have been bound to do so.[24]Mr. Thomson made two further submissions. Firstly he submitted that the Tribunal erred in declining to rely on Miss Hussain's evidence as to observance of Hijab in the community on the basis that it was anecdotal and unsupported by independent evidence when Mrs. Rahman's evidence suffered from the same shortcomings. Secondly he argued that the Tribunal's reference in para. 5.2 of the Extended Reasons to the meaning of an extract from the Holy Quran was perverse because none of the members of the Tribunal was a Muslim and they could not properly embark on interpretation of the principles of Hijab on the basis of one excerpt and neither experience nor knowledge.[25]Mr. O'Donovan on behalf of MCSL submitted that the Tribunal were entitled on the basis of the evidence and their findings of fact to conclude, as they did, that only Miss Hussain, representing 1 out of 9 of female staff of Pakistani ethnic origin, could not comply with MCSL's requirements and were entitled to find that, in such circumstances, a sufficient disproportionate impact upon female staff of Pakistani ethnic origin was not proved. He drew our attention to the Tribunal's rejection of Miss Hussain's evidence as to the inability to comply with such a requirement of Pakistani females more generally; the Tribunal, he submitted, were entitled to look and indeed were invited by Miss Hussain's advocate to look at the 9 female staff of Pakistani ethnic origin as the group or pool for comparison, the Tribunal did so and their findings of fact which emerged from this comparison should not be open to attack on appeal.[26]What Miss Hussain was seeking to do, according to Mr. O'Donovan, was to present the case on the basis that she was in a pool of one or in a smaller pool than the pool of 9 which we have described in order now, on appeal, to find a means of escaping from the Tribunal's factual conclusions which resulted in her failure on the basis on which her case was presented, namely the pool of 9. It was not for the EAT, it was submitted, to consider the case on a different basis from that which was put forward; see Kumchyk v. Derby County Council (1978 ICR 116) and Mensah v. East Hertfordshire NHS Trust (1998 IRLR 531 ).[27]We intend no disrespect to Mr. O'Donovan in recording that his response to Mr. Thomson's arguments as to the date on which the issue of disproportion was to be tested and as to the figures at that time was broadly the same argument as that which we have already set out, namely that the Tribunal was invited only to consider the issue in terms of the pool of 9. He relied upon the conclusion in London Underground v. Edwards No. 2 (see para. 23 above) in support of his argument that the Tribunal was entitled to reach what was essentially a factual conclusion that, on the basis that 8 out of the pool of 9 could comply, there was no substantial disproportion.[28]We are not persuaded that Mr. Thomson is seeking to put forward a new case or a case which is fundamentally different from that which was put forward on Miss Hussain's behalf at the original hearing. Paragraph 6 of the Tribunal's decision, which describes the pools identified by the parties, does not suggest that Miss Hussain confined the ethnic pool to the 9 persons to whom we have referred, including of course herself, or to any other number; the pool which she proposed was "actual or potential employees of Pakistani ethnic origin"; the Tribunal limited the width of this pool by adding "female" before employees; with that adjustment it was for the Tribunal to decide how many persons fell within that pool on the evidence, including within that pool only those persons who were subjected to the same requirement as Miss Hussain.[29]The real question which, in our judgment, falls to be answered is whether the Tribunal erred in approaching the issue of substantial disproportion as they did. They were undoubtedly correct, having regard to the principles in Commission for Racial Equality v. Dutton to which we have referred, to regard the issue as primarily one of fact. However it was essential for the Tribunal to address that issue by first accurately identifying both the 2 groups which were to be compared and the requirement the ability to comply with which was to be considered in the case of each of those groups. The Tribunal cannot, as we see it, be validly criticized for rejecting Miss Hussain's evidence as to the observance of Hijab outside those who had sought or obtained work for MCSL; that was wholly a matter for them; and their assessment of the evidence cannot be undermined by the argument that the Tribunal had not criticized Mrs. Rahman's evidence as to such observance in the same way because the Tribunal did not rely on any such evidence from Mrs. Rahman. The Tribunal might, in the absence of any substantial or other evidence on which they could rely as to the wider world, have regarded the evidence as to those female members of Pakistani ethnic origin who had sought or obtained work at MCSL as too insubstantial in number or as too lacking in detail for any inferences as to ability to comply and substantial disproportion to be drawn. However they did not adopt that approach; the approach they adopted was to consider substantial disproportion by comparing the number of Muslim female employees of Pakistani ethnic origin who could comply - which they found to be 8 out of 9, slightly short of 90% - with the comparator group, female employees who were not Muslims of Pakistani ethnic origin of whom they concluded, as they were entitled to do, 100% would probably be able to comply.[30]In our judgment this comparison was flawed, for the reasons put forward by Mr. Thomson. The 8 employees who had complied with MCSL's requirement of them had not complied with the same requirement as that imposed on Miss Hussain; on the Tribunal's findings of fact, those employees were required to remove their scarves and wear MCSL's protective clothing or to wear both the protective clothing and their scarves in such a way that loose clothing (and hair) was secured. They were all given an option which was not given to Miss Hussain. She was not given any option at all; she was required to remove her scarf and wear the protective clothing if she was going to work at all. It was, therefore, erroneous for the Tribunal to conclude that nearly 90% of the group of female Muslims employees of Pakistani ethnic origin were able to comply, Miss Hussain being the odd one out of 9 members of the group who could not comply. It was erroneous because the other 8 members of the group had not been subjected to the same requirement as was Miss Hussain.[31]The Tribunal ought, in our judgment, to have directed themselves to have considered a comparison between a group of Muslim female employees of Pakistani ethnic origin who had been subjected to a requirement that they must remove their scarves and wear MCSL's protective clothing without the option of keeping their scarves and securing them and a comparator group who did not have the same ethnic background but were subjected to the same requirement. Unfortunately, because of the error which we have described, the Tribunal did not make that comparison.[32]Thus we agree with Mr. Thomson's primary submission. We do not accept his alternative submission, which we have set out at para.18 above quite simply because, in our judgment, the Tribunal did not find that the 8 females in the ethnic group who had complied with MCSL's requirement had been subjected to the same requirement as Miss Hussain. If they had so found, such a finding would not have been sustainable in the light of their earlier findings which plainly demonstrated that, in their cases, the requirement had been different.[33]We do not accept that the principles in Mandla v. Lee were not correctly applied in this case. The Tribunal made no suggestion that Miss Hussain could comply with the requirement imposed upon her; they found that at least some others of the group of 9 could comply not because they were able physically to comply but because they had in fact complied with the requirement imposed by them. That finding involved no departure from the principles in Mandla v. Lee .[34]We are not persuaded that the Tribunal erred in considering the 8 Muslim female employees as part of the ethnic pool because they were or some of them were not in employment at the date of the treatment of which Miss Hussain complained. If, contrary to the evidence and findings, the same requirement had been imposed on those 8 employees as on Miss Hussain, it would have been open to the Tribunal, to have regarded the evidence as to these 8 employees as providing a reliable picture of the proportion of employees who could have complied with that requirement at the relevant date.[35]We also do not accept Mr. Thomson's submission that the Tribunal's conclusion that, on the basis that 87% of the ethnic group of 9 who could comply as opposed to the 100% of the comparator group who could comply with MCSL's requirement, there was not a substantial disproportion was perverse or in error. Assuming (contrary to our primary conclusion) that the Tribunal were correct in making that comparison, it was, particularly in the light of the passage in London Underground v. Edwards No. 2 to which we have referred, a matter for them to decide whether the figures were such that the proportion of those in the ethnic group who could comply was considerably smaller; and comparison with conclusions reached by Tribunals in other cases are not valuable; each case has to be decided on its own facts and within its own context.[36]Finally we refer to Mr. Thomson's last submissions, set out at para.24 above. We have already dealt with the former, we see no basis for criticism of the Tribunal's assessment of Miss Hussain's evidence as to the observance of Hijab in the wider community. As to the latter, it seems clear to us that the Tribunal derived from the passage in the Holy Quran which they cited support for the principle of observance upon which Miss Hussain relied, namely that female Muslims should wear some form of head covering which came down over the face. It is not necessary for us to consider whether the Tribunal had an evidential or other basis for their comment upon the meaning of the passage to which they referred (although we suspect that the passage was put before them as one which supported Miss Hussain's evidence) because the Tribunal's comment was wholly favourable to Miss Hussain's case; and we see no basis on which the Tribunal can be criticized on behalf of Miss Hussain in this respect.[37]It can be seen from the above that we do not accept Mr. Thomson's submissions, with the exception of his first and primary submission which we do accept. Mr. Thomson suggested that if we thus decided, it was open to us to take the view that, had the Tribunal adopted the correct approach, it would inevitably have concluded the disproportion issue in favour of Miss Hussain. We have, however, no doubt that we cannot know with certainty or even with confidence how the 8 Muslim female employees of Pakistani ethnic origin who were given the choice to which we have referred would have responded if presented with a requirement which they never actually had to face. None of them gave evidence to the Tribunal; none of them was asked what her reaction would have been to a requirement that she remove her headscarf and wear the protective clothing without the option of wearing both. While the Tribunal made the express findings which we have set out at para. 8 of this judgment, they did not make any finding as to how many of the 8 employees did in fact remove their headscarves or would have done so if faced with the requirement imposed on Miss Hussain. It is, in these circumstances, not possible for us to determine what would have been the result had the Tribunal not erred as in our judgment they did.[38]The Tribunal was satisfied that MCSL's policies as to headscarves were based on consideration of health and safety, manifestly of importance to MCSL and its employees. MCSL appears usually to have approached the potential conflict with the cultural and religious observances of Muslim women of Pakistani ethnic origin pragmatically but to have adopted a more rigid approach in the case of Miss Hussain more by accident than by design. If Miss Hussain's claim has to be reheard by a different Tribunal, that Tribunal may or may not look for convincing evidence beyond the experience of a very small group of employees. We express the hope that the parties can, therefore, avoid the need for such a rehearing. However, because it is not possible for us to say what the result would have been if the Tribunal had not erred as, in our judgment, they did there is no alternative but to the remission of this case to the Tribunal so that it can, if necessary, be decided on the basis of a correct approach to the central issue.[39]Both parties before us agreed that we could not properly remit to the same Tribunal. Accordingly this appeal is allowed to the extent that Miss Hussain's claim is remitted for rehearing by a fresh Tribunal. If, as to which we express no views, there are any arguments based on the Human Rights Act 1998 they will be available to the parties at such a rehearing.