Veitch Penny LLP - Exeter | Crediton, Devon

Case

Cherfi v G4S Security Services Limited
Employment Appeal Tribunal 24 May 2011

Issues

(1) Discrimination under the Employment Equality (Religion or Belief) Regulations 2003
(2) Indirect discrimination
(3) Justification

Facts

For several years Mr Cherfi, a Muslim employee, was allowed to leave his workplace at lunchtime in order to attend Friday prayers at a mosque. His employer entered into a new contract with a client requiring G4S to supply a certain number of security guards at all times. In October 2008 Mr Cherfi was told that he could not leave the premises on Friday lunchtimes any more. In response, Mr Cherfi took sick leave, annual leave or authorised unpaid leave in order to cover his absences on Friday. He was told that these practices had to stop but when he continued he was eventually disciplined about the matter and given a verbal warning.

Mr Cherfi claimed indirect religious discrimination alleging that the requirement of G4S to have security guards on site on Friday lunchtimes had a disproportionate effect on Muslims. In response to his claim, the employer needed to demonstrate that their requirement was a proportionate way of achieving a legitimate aim (known as “justification”). In their defence they argued that they may have lost the contract if they had not complied with its terms and suffered financial penalties. They also made the point that they had offered alternative working patterns to Mr Cherfi which did not involve Friday working and they had a prayer room on site that he could use.

At the Employment Tribunal his claim was rejected. Mr Cherfi then appealed to the Employment Appeal Tribunal (EAT) arguing that the Employment Tribunal had looked too heavily at the issue of costs as a ground justifying the employer’s discriminatory act.

Decision

G4S was successful at the EAT. It was found that G4S had carefully considered the competing demands of the two parties and had satisfied the Tribunal that the requirement placed upon Mr Cherfi was justified. It noted that cost had not been the only issue G4S had considered but if they had based their justification on cost alone the Employment Tribunal could still have made the finding.

Comments

The interesting point to note with this case is that a cost argument again is being raised by the employer as a ground justifying the employer’s act. Traditionally cost alone as a justification would not suffice. We have reported on previous occasions that Tribunals appear to be increasingly willing to consider costs as an acceptable reason for discrimination and this case is another move in that direction. It is too early for employers to rely on such an argument alone. It is still key for employers is to establish that they have looked at alternatives and consulted with the employee.