Two recent employment cases have seen employers successfully show that indirect discrimination can be objectively justified as a proportionate means of achieving a legitimate aim.
In the employment tribunal case of Dhinsa v Serco and another ET/1315002/09, an Amritdhari (or 'initiated') Sikh was prohibited from wearing his kirpan (a ceremonial dagger), one of the five 'articles of faith' worn by such Sikhs, at work.
Mr Dhinsa was a trainee prison officer at Dovegate prison, a medium-security prison holding a number of violent offenders. The Prison Service policy is that no-one may wear a kirpan inside the prison except for Sikh chaplains. Mr Dhinsa refused to remove the kirpan despite the prison trying to reach a compromise with him (such as wearing a replica, which Mr Dhinsa refused to do). Mr Dhinsa's employment was terminated.
The employment tribunal rejected both the race and religion or belief discrimination claims raised by Mr Dhinsa. Serco, which ran the prison on behalf of the prison service, was able to justify the ban as it was plainly a legitimate aim to secure the safety and security of staff, prisoners and visitors. Points that were taken into account included the fact that the overall discriminatory impact of the ban was small; over 200 assaults in prison in 2008 involved a knife or blade; and, that the policy was not applied 'blindly'; Serco spoke with other prisons and the police about their approach to the kirpan.
In the Employment Appeal Tribunal (EAT) case of Cherfi v G4S Security Ltd UKEAT/0379/10, the tribunal was faced with a similar indirect discrimination claim because of religion. In this case Mr Cherfi, a Muslim, worked as a security guard. He had worked at the same site since 2005 and left the site on Friday lunchtimes to attend the mosque. In 2008 he was told that he could no longer leave the site as his employer, G4S, was contractually obliged to have a specific number of security guards at the site at any time.
Mr Cherfi's employer offered to change his contract so that he worked Monday to Thursday with the option of working at the weekend. Mr Cherfi said that he did not want to work at the weekend. After Mr Cherfi was prohibited from leaving the site on Fridays he started taking Fridays off as sick leave, annual leave or authorised unpaid leave. In 2009 the decision was taken that the current situation was no longer tenable and Mr Cherfi's employment was terminated.
Mr Cherfi brought claims of indirect religious discrimination in that the requirement to have security guards at the site on Friday put Muslims at a particular disadvantage. The EAT upheld the employment tribunal's decision that the requirement for security guards to work on a Friday was objectively justified. The tribunal noted that there was a prayer room on site and Mr Cherfi had been offered alternative work patterns which would have enabled him to attend the mosque.
Interestingly, G4S did not rely solely on cost considerations to justify its decision, despite it being identified that it would have suffered financial penalties and been at risk of losing the client contract if the requisite number of security guards were not on site. However, the EAT said that had G4S relied solely on cost, it would have followed the view of Underhill P in Woodcock that cost alone might justify a principle, criterion or practice provided that the normal proportionality test was met