An opinion of the EAT in Cherfi v G4S Security Services UKEAT/0379/10 suggests that there are circumstances in which an employer can rely on cost alone to justify an indirectly discriminatory policy.

Mr Cherfi was a Muslim security guard employed by G4S.  He wished to leave the site every Friday to attend prayer.  G4S was contractually obliged to another company (‘C') to ensure that a certain number of security guards were on site during operational hours and this prevented Mr Cherfi from attending the Mosque on Fridays. Mr Cherfi claimed indirect discrimination as the decision put Muslims at a disadvantage.

Conflicting case law exists on whether employers can use cost alone as a justification for otherwise discriminatory policies.  Whilst in Cross and others v British Airways plc [2005] the EAT held that cost alone cannot be used as justification, Woodcock v Cumbria Primary Care trust [2011] cast doubt on this decision. Here, although the EAT held that G4S' decision was indirectly discriminatory, it also held that the financial implications of allowing Mr Cherfi to attend prayer on Friday were sufficient to justify the decision. In particular, G4S was in danger of losing its contract with C if it did not ensure enough security guards were on site at the relevant time.

This case suggests a gradual shift in the courts' approach towards allowing costs alone to justify discriminatory practices.  However, the position is still not clear cut and employers are therefore advised to