In Cherfi v G4S Security Services Ltd, the EAT upheld a Tribunal decision that a security services firm had not indirectly discriminated against an employee on the grounds of his Muslim religion by refusing permission for him to attend Friday prayers at a local mosque.
Although the employee had previously been allowed to attend Friday prayers, a new security contract had been taken on for a client who stipulated that a specific number of guards had to be on site throughout their shifts. Apart from financial penalties, the continuation of the contract would be jeopardised if this was not complied with. The employer therefore withdrew their permission. They had said that he could move to a shift working one day at the weekend instead of Fridays but the employee did not want to do this.
In legal terms, the employer had applied a "provision, criterion or practice" that was potentially indirectly discriminatory to the claimant as a Muslim, but it was a "proportionate means of achieving a legitimate aim", namely the operational needs of the employer's business. And, although this was not a case of a cost consideration alone being used to justify a policy, the EAT (following the view expressed in the recent Woodcock v Cumbria Primary Care Trust case) commented that, even if it was, this would not have prevented a justification defence. Woodcock, a case where the dismissal of a chief executive before his 50th birthday, in order to avoid liability for a "windfall" enhanced pension, was not unlawful age discrimination, is going to the Court of Appeal in October.