It is not uncommon for an employer to be faced with the potentially difficult issue of balancing an employee's beliefs (which mean that, for example, they do not wish to work on certain days or want time off to pray) with the needs of the business. Typically this arises where there is a particular rule that applies to everyone but means that certain groups, including the employee complaining, are put at a disadvantage (i.e. indirectly discriminated against). In Cherfi v G4S Security Services Ltd the EAT examined whether refusing an employee permission to leave work to attend Friday prayers at a Mosque was justifiable. The EAT interestingly, also commented on whether cost alone could be a justification for a discriminatory requirement.
Mr Cherfi, a Muslim, worked as a security guard in Highgate on a client site. The client required all security officers to remain on site for a certain number of hours per day. Consequently, Cherfi was not allowed to leave the site to attend Friday prayers at a local mosque. Cherfi claimed, among other things, that the requirement for him to remain at work on Friday lunchtimes constituted indirect religious discrimination.
The tribunal dismissed Cherfi's indirect discrimination claim. Although the requirement did place Cherfi at a disadvantage as a practising Muslim, G4S would be in danger of financial penalties or even losing its contract with its client if a full complement of security staff was not on site throughout the day. Cherfi had refused a variety of arrangements offered to accommodate his requirements, such as changing his working days and using a prayer room on site. Therefore, the tribunal found that the requirement was a proportionate means of achieving a legitimate aim, namely, the operational needs of the business. Cherfi appealed, arguing that the tribunal had failed to properly balance the discriminatory effect on him with the reasonable needs of his employer. He also suggested that G4S' justification argument should not have succeeded as it was based on cost issues alone.
Dismissing the appeal, the EAT held that the tribunal had carried out the necessary balancing act. It had considered both the reason why G4S refused, i.e. the cost implications and the risk of losing the contract, and the impact of this on Cherfi.
Furthermore, the case was not an example of cost alone being used to justify discrimination. However, even if it were, the EAT supported the view expressed in another case by the President of the EAT that, where the costs of avoiding discriminatory impact of a PCP or of rectifying it would be disproportionately high, then this could alone potentially justify certain discriminatory circumstances.
There are two key points arising from this case. Firstly, the useful examination of how an employer can balance the potential discriminatory effects of a particular requirement on an employee against the business needs of the employer. Secondly, the tribunals may now start to take note of the EAT's comments that cost alone may be enough to justify a requirement that applies to all but discriminates against particular employees where the cost of avoiding that requirement's discriminatory impact is disproportionately high.