Discrimination: No time off to attend Mosque did not amount to indirect discrimination

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Posted on 09 Jun 2011

In Cherfi v G4S Security Services Ltd, the EAT considered that G4S’s refusal to allow Mr Cherfi time off to attend mosque was not indirectly discriminatory because of religion. It has also provided further guidance in respect of the "cost-plus" approach to objective justification. Mr Cherfi worked as a security guard.  From 2005, he regularly left the site he was guarding on Friday lunchtimes to go to the Mosque.  In October 2008, G4S told Mr Cherfi told that he could no longer go to the Mosque as they were contractually obliged to maintain cover on the site at all times.   There was a prayer room on site, but Mr Cherfi refused to use this.  The company sought to amend his employment contract (with consent), so that he would not have to work on Fridays, but Mr Cherfi refused the change and instead took sick leave or holiday so that he could attend the Mosque.  In 2009, Mr Cherfi was told that this could not continue and he then brought a claim for indirect religious discrimination.  It was found that this treatment did not amount to discrimination and was objectively justified.  The EAT balanced the employer's operational needs with the discriminatory effect on the employee and considered that the ET was entitled to find that the requirement for security guards to remain on site was objectively justified as a proportionate means of achieving a legitimate aim. 

In this case G4S did not solely rely on cost in their objective justification defence.  However, the EAT commented that in some instances cost alone will be sufficient to allow employers to show that a prima facie case of discrimination is objectively justified.  Previously it had been held that cost could not be the only factor.   This appears to amount to a welcome change in direction for employers, but caution should still be taken.

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