Indirect discrimination is potentially justifiable by employers. This is when an employer can show that a provision, criterion or practice (PCP) puts some workers at a disadvantage, if it’s a proportionate means of achieving a legitimate aim. In Cherfi v G4S Security Services Ltd, the Employment Appeal Tribunal (EAT) said that employers can rely on cost to justify what would otherwise be an indirectly discriminatory policy.
Mr Cherfi worked as a security guard for G4S on a site in Euston for several years which he left every Friday lunchtime to attend prayers at the local mosque, with agreement with G4S. He then moved to a site in Highgate which he was also allowed to leave on Friday lunchtime to attend the mosque.
However a new contract between G4S and the site owner meant that G4S had to ensure a certain number of minimum guards on site during operating hours. Mr Cherfi's absences meant it could not fulfill its contractual obligation and were in danger of losing the contract, involving financial penalties.
G4S withdrew its permission, but Mr Cherfi continued to leave on Friday lunchtimes to go to the mosque and was suspended for an allegedly unauthorised absence. In October 2008, he raised a grievance which included the fact that he had been refused permission to attend the mosque.
G4S explored various options to resolve the problem, including changing his shift pattern so that he worked one day at the weekend instead of Fridays. The company also suggested that he use a prayer room which was available on site.
Mr Cherfi turned down the proposals but began unofficially not to appear for work on Fridays by taking holiday, sickness absence, or unauthorised unpaid leave on these days. When G4S told Mr Cherfi that this could not continue, he raised an indirect religious discrimination claim arguing that G4S's policy placed Muslims at a particular disadvantage.
The Tribunal disagreed, holding that the requirement to be on site was a proportionate means of achieving the legitimate aim of meeting the employer's operational needs. Otherwise G4S would suffer financial penalties.
It pointed to the fact that the company had offered an alternative work pattern to Mr Chelfi and provided a prayer room on site where he could go instead.
The EAT agreed with the Tribunal that G4S had applied a PCP to Mr Cherfi which put him, as a practising Muslim, at a disadvantage because he could not attend prayers “in congregation”.
However, it concluded that requiring Mr Cherfi to remain on site was a proportionate means of achieving the company’s legitimate aim to comply with the contract, given the “substantial” financial penalties that the company would face if it did not adhere to the terms of the contract.
It rejected Mr Cherfi’s argument that economic considerations on their own could not justify a discriminatory policy (Cross v BA, Weekly LELR 113), preferring instead the EAT decision in Woodcock v Cumbria Primary Care Trust (Weekly LELR 199), which held that financial implications were sufficient to make the discriminatory policy reasonable and proportionate.
Although this was not a case in which costs alone were used to justify the PCP, the EAT said that, given the overall position and the alternatives open to the company, the Tribunal would have been entitled to come to the conclusion that it did, even if cost had been the only consideration.