The ability of an employer to justify indirect discrimination in the context of unlawful discrimination relating to the protected characteristics (of sex, race, disability, religion or belief, sexual orientation, age, gender reassignment and marriage and civil partnership) has given rise to an abundance of case law, with employment tribunals and higher courts grappling with the complex question of whether or not a “proportionate means of achieving a legitimate aim” has been established, in order to show that a discriminatory provision, criterion or practice can in fact be justified.
Religious discrimination has proven to be something of a “hot potato” in this area, with the cases demonstrating generally that a careful balancing of the employee’s right to religious freedom against the business needs of an employer is required.
Cherfi v G4S Security Services Ltd
Recently, the Employment Appeal Tribunal (EAT) held that an employer did not unlawfully discriminate against a Muslim employee by refusing his request to attend a Mosque on Fridays (Cherfi v G4S Security Services Ltd UKEAT/0379/10), on the basis that the action of G4S was objectively justified.
Mr Cherfi worked as a security guard, and for the first few years of his employment left the site on Friday lunchtimes to attend a local Mosque. However, after his manager became aware of this, G4S stated that this could no longer continue as the company had a contractual obligation with its client to ensure that a certain number of security guards remained on site throughout operating hours (including lunchtimes).
Mr Cherfi was disciplined for his unauthorised absence and his grievance about the matter was not upheld.
In the employment tribunal, Mr Cherfi’s indirect religious discrimination claim failed. It was accepted that the provision, criterion or practice applied by G4S (by not allowing him to attend the mosque on Fridays) had placed Mr Cherfi, as a Muslim, at a particular disadvantage, but that this was a proportionate means of achieving a legitimate aim. The tribunal placed emphasis on the business needs of G4S and considered the evidence that there would be financial penalties (and/or the loss of a client contract) if the requisite number of security guards were not present on site.
The EAT upheld the tribunal’s decision. It rejected Mr Cherfi’s argument that G4S’s actions were determined by cost alone, but it stated that, even if cost had been the sole consideration for the company, the tribunal would have been entitled to conclude that its actions were justified. This indicates a move away from previous case law that suggested that cost implications of a discriminatory practice alone would not justify the discrimination, unless coupled with at least one other factor.
This decision will be welcomed by employers that may be struggling with the difficult issue of requests by employees for time off for religious reasons. It is also encouraging that the EAT relied on the case of Woodcock v North Cumbria Primary Care Trust (2011), which took the view that the “costs alone will not suffice” argument ran the risk of tribunals becoming involved in unhelpful “artificial game playing”. Therefore, it now seems possible that legitimate financial considerations may serve to objectively justify a provision, criterion or practice that has a discriminatory effect. However, it remains essential for employers to exercise caution before acting on those costs arguments alone.
It was fundamental that the approach taken by G4S had been accommodating to Mr Cherfi’s position and it was recognised that the company had attempted to avoid the discriminatory effect of the provision (eg by offering him different shifts).
In this case, the operational needs of G4S were held to outweigh Mr Cherfi’s religious rights, but it was crucial that the company was viewed as having acted reasonably in all of the circumstances. To that end, employers will be well advised to ensure that:
- diversity and equal opportunities policies and grievance policies are in place and up to date (eg updated to reflect the Equality Act 2010);
- managers are trained appropriately on these policies and procedures;
- any costs decisions are comprehensively backed with a paper trail; and
- any means of avoiding the discriminatory practice are considered and recorded.
Laura Binnie, employment solicitor at Blandy & Blandy LLP.
CORRECTION: When first published, this article incorrectly stated that Mr Cherfi had been dismissed by G4S.