In terms of the Equality Act 2010 where an employer applies a provision, criteria, or practice which applies to all employees but which puts employees who have a protected characteristic at a particular disadvantage this can give rise to a claim of indirect discrimination. Often, the reason behind that provision, criteria or practice will be financial but until now case law has indicated that it is not possible for an employer to justify an indirectly discriminatory provision on financial grounds alone.

This so-called "cost plus" principal which required the employer to demonstrate another factor in addition to cost in order to justify any indirectly discriminatory provision was established in the case of Cross and others v British Airways plc [2005] IRLR 423 but has recently been doubted in Woodcock v Cumbria Primary Care Trust [2011] IRLR 119.

Now, Cherfi v G4S Security Services Ltd UKEAT/0379/10 has cast further doubt on this principle. Mr Cherfi was a Muslim security guard who, from 2005, regularly left work during Friday lunchtimes in order to attend a nearby Mosque. His employer was contractually bound to ensure a certain number of security guards were present at the site at all times and, in 2008, they asked Mr Cherfi to cease leaving the site at lunchtimes. He was offered weekend hours instead in order to avoid a clash with his attendance at the Mosque on a Friday, and an on-site prayer room was provided. Mr Cherfi’s claim of indirect religious discrimination was rejected by the Employment Tribunal on the grounds that his employer’s actions were objectively justified as a proportionate means of achieving a legitimate aim.

On appeal the EAT upheld the Employment Tribunal’s judgement. Having considered the possible implications for the employer as well as the alternatives offered to Mr Cherfi, the EAT concluded that the requirement for Mr Cherfi to work over lunchtime was objectively justified. Mr Cherfi’s employers did not rely on cost alone as a justification for the requirement, but the EAT went out of its way to note that, had it done so, that factor alone could be enough to justify indirectly discriminatory practices. As such, this case supports the Woodcock case in doubting the "cost plus" rule. It is likely, therefore, that there has been a notable shift in the EAT’s approach to the justification of indirect discrimination. This will no doubt be a relief to employers, who will, at times, find it difficult to point to factors beyond cost to justify their rules and practices.