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Employment Appeal Tribunal Holds Indirect Religious Discrimination Justified

29th July, 2011

The Employment Appeal Tribunal (“EAT”) in the recent case of Cherfi v G4S Security Services Limited (“G4S”) UKEAT/0379/10 has held that indirect race discrimination can be justifiable.

Indirect discrimination applies where a provision, criterion or practice (“PCP”) has the effect of disadvantaging one group of people over another. The act of indirect discrimination is unlawful but can be objectively justified if the reason for it is a proportionate means of achieving a legitimate aim, that is, if the PCP is necessary in order to achieve a legitimate aim of the business and there is no other way of achieving this.

Mr Cherfi was employed by G4S as a security guard and worked from a client’s premises. As a practising Muslim, Mr Cherfi from the outset of his employment in 2005 was permitted to attend a nearby mosque on a Friday lunch time to pray. In October 2008, G4S informed Mr Cherfi that he was no longer permitted to leave the client’s site on a Friday lunchtime due to G4S being contractually obliged to ensure the requisite number of security guards were on site at the client’s premises at any one time.

G4S considered alternatives they could offer Mr Cherfi to enable him to attend the mosque. These included working Monday to Thursday and then either Saturday or Sunday, or an on-site prayer room could be made available for Mr Cherfi’s use on Friday lunchtimes. Mr Cherfi rejected the proposed alternatives and brought a claim against G4S for indirect religious discrimination. The PCP Mr Cherfi relied on in bringing his claim was that the requirement for security guards to be on site during Friday lunchtimes placed Muslims at a particular disadvantage.

The Employment Tribunal rejected Mr Cherfi’s claim. It found G4S’s reasons for the requirement of Mr Cherfi to be in attendance on Friday lunchtimes to be objectively justifiable. Had G4S not insisted on Mr Cherfi being in full attendance, they would have suffered financial penalties for breach of contract and been at risk of losing the client’s business. In addition to this, G4S had offered Mr Cherfi reasonable alternatives in order that he would not suffer any detriment.

Mr Cherfi appealed to the EAT alleging G4S had failed to carry out the necessary balancing exercise between the reasonable needs of an employer and the discriminatory effect on an employee.

Mr Cherfi’s appeal was rejected. The EAT agreed with the Employment Tribunal’s findings and held that the necessary balancing act had been carried out between the operational needs of G4S and the discriminatory effect of this on Mr Cherfi. Subsequently G4S’s requirement for Mr Cherfi to remain on site throughout a Friday lunch time was a proportionate means of achieving a legitimate aim which was that of meeting the employer’s operations needs.

What is reassuring for employers is that whilst G4S did not rely on cost alone in making it a requirement that Mr Cherfi work Friday lunchtimes, the EAT made it clear in its decision that even if the decision had been on cost alone, this would have been enough for G4S’s decision to be objectively justifiable.

For more information on this or any other employment law matter please contact Helen Watson on 01244 405565 or email her here.

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