The recent case of Cherfi -v- G4S Security Services Limited has provided the Employment Appeal Tribunal (EAT) with an opportunity to consider whether indirect discrimination can be justified on the ground of cost alone.
Mr Cherfi worked as a security guard at a site in Highgate from 2005. He regularly took time off work on Friday (paid) lunchtimes to attend prayers at a mosque. In 2008 his employer told him that he could no longer do so because there was a contractual obligation to keep a minimum number of guards on site during operating hours. He was offered a changed working pattern, working Mondays to Thursdays and alternating Saturdays and Sundays so that he could take Friday as a day off. Mr Cherti refused this offer. Instead, he took time off for sick leave, annual leave or authorised unpaid leave.
In March 2009 he was told that his ad hoc absences on Fridays could not continue and he brought a claim of indirect religious discrimination. He maintained that Muslims were put at a particular disadvantage by the requirement to work throughout Fridays. Relying on the case of Cross -v- British Airways he contended that financial considerations alone could not justify a discriminatory policy. G4S disagreed, relying on the case of Woodcock -v- Cumbria Primary Care Trust. The EAT preferred the decision in Woodcock. In this case it was held that the relevant considerations were not exclusively economic, but even if that had been the case, the discrimination would have been reasonable and proportionate.
It was noted that G4S would suffer financial penalties if adequate cover was not maintained, that Mr Cherfi had refused alternative working arrangements and that a prayer room was available on site. An important aspect of discrimination cases is the duty of an employer to make reasonable adjustments, in this case to accommodate religious needs. G4S had done all that was necessary and the requirement to remain on site was objectively justified as a proportionate means of achieving a legitimate aim of meeting the Company’s operational needs.