The Employment Appeal Tribunal (EAT) has recently considered a couple of cases dealing with the issue of indirect religious discrimination. Both cases contained issues which many employers have to deal with on a regular basis.

Legal background

Under the Equality Act 2010, indirect discrimination occurs where someone (an employer or service provider, for example) applies a provision, criterion or practice (PCP) which puts (or would put) people who of a certain religion or belief at a particular disadvantage when compared to others and the PCP is not justified as a proportionate means of achieving a legitimate aim. A similar test applied under the Employment Equality (Religion or Belief) Regulations 2003.

Group disadvantage – Chatwal v Wandsworth Borough Council

In this case the claimant, complained after his employer of six years introduced a new rule whereby staff who used the communal kitchen had to participate in a rota to clean the communal fridge. As such, staff would, from time to time, come into contact with meat products which were left in the fridge.

Mr Chatwal refused to clean the fridge on the basis that, as an Amritdhari Sikh, he was forbidden to touch meat. Mr Chatwal brought a claim alleging indirect religious discrimination. At a tribunal hearing the Claimant gave evidence that Amritdhari Sikhs (i.e. those who have taken holy water) such as himself, vowed never to eat, touch or prepare meat. The tribunal determined, however, that the Claimant had not established “group disadvantage” – which it considered an essential requirement to be able to claim indirect religious discrimination. The tribunal was not satisfied that a large proportion of Sikhs held similar beliefs to the Claimant. Furthermore, the tribunal noted that the Sikh Code of Conduct and Holy Scriptures did not prohibit the touching of meat.

The EAT allowed an appeal by Mr Chatwal and sent the case back to the same tribunal for further consideration. The EAT did this because it felt that the tribunal had failed to explain its decision that a significant number of others did not share the relevant belief that touching meat was forbidden given the available evidence, namely: the evidence of Mr Chatwal himself; a letter from the President of Mr Chatwal’s place of worship; a letter from a member of the branch of the Sikh community to which the Claimant belonged; and expert evidence which supported the contention that there is a group of people sharing the same religious belief as Mr Chatwal.

However, the EAT was not totally critical of the tribunal, noting that “there is no consensus in law as to how large (or small) this cohort of others or “group” must be in order to suffice”. Readers may recall that in the case of Eweida v British Airways Plc [2010] (which involved a Christian woman who was prevented from displaying a cross around her neck) the Court of Appeal said that an indirect discrimination claim cannot be based on disadvantage to just one individual. Regrettably, the Court of Appeal did not go on to spell out how big a disadvantaged group there had to be to establish indirect discrimination. It would appear, however, that there does not need to be a large group of people for group disadvantage to occur but simply people in addition to a claimant in a particular case who share the same religion or belief.

Justification – Cherfi v G4S Security Services Limited

In the second case the EAT had to consider whether a refusal to allow a Muslim employee time off to attend mosque on a Friday was indirectly discriminatory.

For three years Mr Cherfi had worked as a security guard at a client’s site in Highgate and regularly left the site at lunchtime on Fridays in order to attend prayers at a mosque. However, in October 2008, Mr Cherfi’s employer (G4S) told him that he could no longer do this as it was contractually obliged to ensure that there were a specified number of security guards present throughout operating hours. G4S did try to accommodate Mr Cherfi’s religious beliefs and offered to change his contract to a Monday to Thursday pattern with the option of Saturday and Sunday work to make sure there was no loss of income. However, Mr Cherfi did not wish to work weekends and essentially stopped working Fridays by either taking holidays, authorised unpaid leave or sick leave. After doing this for five months he was told by G4S that this arrangement could not continue, whereupon he brought a claim for indirect religious discrimination arguing that the requirement that security guards be on site on a Friday lunchtime placed Muslims at a particular disadvantage.

Although Mr Cherfi was able to establish group disadvantage, he lost his claim because the tribunal determined that G4S was objectively justified in requiring him to be on site on Friday afternoons due to the fact that the company would suffer financial penalties and could be at risk of losing a client if it did not make sure that there was an agreed number of security guards on site. As such, G4S had to engage security guards working shifts of at least 8 hours. The tribunal was also mindful of the fact that G4S had offered Mr Cherfi weekend work so that he would not suffer financially if he chose not to work on Fridays. And although the requirement to be on site prevented Mr Cherfi from attending the mosque, G4S did have a prayer room on site which Mr Cherfi could use. Taking all of this into account, the tribunal was satisfied that the requirement to be on site was a proportionate means of achieving the legitimate business aim of meeting operational needs.

The EAT upheld the tribunal’s decision, rejecting Mr Cherfi’s claim that the tribunal had failed properly to weigh the discriminatory effect he had suffered against the needs of his employer.

Mr Cherfi also argued that the justification argument should not have succeeded as it was based only on cost considerations and the EAT had said in previous cases (in particular Cross v. British Airways plc [2005] IRLR 423) that this was not permissible. The EAT rejected this argument, saying G4S had not relied only on cost only considerations to justify its practices. Interestingly, the EAT went on to say that, in any event, the law does not prevent employers relying on cost considerations, on their own, to justify indirect discrimination. The EAT said, in this regard, it agreed with comments made by the President of the EAT in a case from last year, Woodcock -v- Cumbria Primary Care Trust. In that case, the President expressed the view that earlier cases were wrong to the extent that they suggested cost alone cannot justify indirect discrimination.

The Cherfi case leaves us with conflicting EAT rulings on whether cost considerations alone can justify indirect religious (and other) discrimination. Fortunately, the Woodcock case is due to be considered by the Court of Appeal at the end of this month (see the ‘Cases to Watch’ section at the end of this update) and it is hoped that this might result in the law being clarified before too long.

Future developments

Next year the European Court of Human Rights is due to consider four cases involving claims of indirect religious discrimination, namely Eweida (referred to above) and Chaplin (also a case involving a Christian nurse who had not been allowed to wear her crucifix on a necklace at work) and Ladele and Mcfarlane (cases involving two Christians who sought accommodation in their workplace of their religious views on same sex relationships).

The Equality and Human Rights Commission (EHRC) is one of a number of organisations that have been given permission to make submissions to the Court. The EHRC is arguing, amongst other things, that the “group disadvantage” approach adopted by the Court of Appeal in the Eweida case makes it too difficult to establish indirect religious discrimination and that, as a consequence, UK law does not adequately protect individuals’ rights to manifest their religious beliefs. The EHRC feels, however, that the UK Courts got the balancing exercise right in the cases of Ladele and McFarlane and that employers will generally be justified in refusing to accommodate manifestations of religious beliefs in the workplace where those beliefs are themselves discriminatory.

These cases could have a significant impact on how our domestic laws are interpreted and applied.