In the recent case of Cherfi v G4S Security Services Ltd, the Employment Appeal Tribunal has upheld an employment tribunal decision that it was lawful for an employer to refuse a Muslim employee time off to attend a Mosque on Friday lunchtimes.
The Equality Act 2010 (and formerly the Employment Equality (Religion or Belief) Regulations 2003 under which this case was pursued) contains provisions which make it unlawful for employers to indirectly discriminate against people with particular religious beliefs. Indirect religious discrimination will occur when the employer applies a provision, criterion or practice (“PCP”) to an employee which, whilst applying equally to other employees with different religions, puts the employee in question at a particular disadvantage due to his or her particular religion. Such indirect discrimination will be unlawful unless the employer can show that the PCP is justified by being a proportionate means of achieving a legitimate aim.
Mr Cherfi is a Muslim and was employed by G4S as a security guard placed at a client’s premises in North London. On Friday lunchtimes, he regularly left the premises in order to attend a Mosque. This practice continued for a few years before G4S advised Mr Cherfi that he could no longer leave at Friday lunchtimes as G4S was required, contractually, to ensure a certain number of guards were present at the client’s site during operating hours. Discussions were held with Mr Cherfi about alternative working arrangements, such as working Monday to Thursday with the option to do weekend work but this was not agreed by him. Mr Cherfi ceased working on Fridays through a combination of annual leave, unpaid leave and sick leave. Eventually, Mr Cherfi brought a claim of indirect religious discrimination on the basis that requiring guards to be present on site on Friday lunchtimes put Muslim employees at a particular disadvantage to others.
The tribunal rejected the claim and found that, whilst G4S’ requirement to be on site at Friday lunchtimes was in principle indirectly discriminatory, the requirement was justified – the requirement was a proportionate means of achieving the legitimate aim of meeting G4S’ operational needs. In reaching that decision, the tribunal had particular regard to the financial penalties and risk of losing clients G4S faced if it breached its contractual obligations as regards guard numbers on site, to the efforts that G4S had made to offer alternative arrangements to Mr Cherfi and to the fact that, whilst the requirement prevented praying in congregation, it did not prevent praying per se as there was a prayer room available on the work site.
Mr Cherfi appealed to the EAT, claiming that the employment tribunal had failed to properly balance the needs of the employer against the discriminatory effect of the requirement. Mr Cherfi also claimed that G4S’ justification argument should not have been accepted as it was based upon cost considerations alone. This last point raised issues arising under previous EAT cases of Cross v British Airways and, more recently, Woodcock v Cumbria Primary Care Trust. In Cross, the EAT held that justification cannot be shown on the grounds of cost alone but rather cost may be a factor together with other legitimate aims. In Woodcock, however, the EAT expressed doubt about that earlier decision and suggested that cost alone could be justification when the cost of avoiding a discriminatory requirement is disproportionately high.
The EAT rejected Mr Cherfi’s appeal and found that the tribunal had properly carried out a balancing act between the needs of the employer and the discriminatory effect of the requirement to be on site, as was demonstrated by the tribunal’s consideration of the prayer room availability on site and the efforts made by G4S to suggest alternative working arrangements.
The EAT found that G4S’ justification was not based on cost alone but that, even it was, the EAT regarded the suggestion in Woodcock that disproportionately high cost could be sufficient justification “as correct”.
This case is a useful example of how the courts will tackle indirect discrimination issues and underlines the importance of employers in giving careful thought and clarity to what legitimate aim a discriminatory requirement is serving to achieve and to act proportionately, in particular the importance of conducting a balancing exercise and considering how an aim can be achieved in the least discriminatory way reasonable. The case is also helpful to employers in suggesting that there is increasing recognition that cost alone may be sufficient justification for indirect discrimination in the right circumstances.
What the case emphatically does not do, however, if set down any general precedent about refusing time off for religious purposes; each particular case must be assessed on its own merits.