Cherfi v G4S Security Services Ltd (Religion or Belief Discrimination)

Indirect discrimination requires a provision, criterion or practice which disadvantages persons sharing the claimant’s religion or belief, places the claimant at that disadvantage, and cannot be justified as a proportionate means of achieving a legitimate aim.

Justification requires an objective balance between the discriminatory impact and the employer’s reasonable operational needs. An employment tribunal need not structure its reasoning in a particular form if that balancing exercise can reasonably be identified from the judgment. Contractual obligations, the risk of losing a customer’s contract and the practical cost of alternative staffing may justify the practice where, viewed overall, the impact is limited and the alternatives are available but unacceptable to the claimant.

Mr Cherfi, a Muslim security guard employed by G4S Security Services Ltd, worked at a Highgate site operated under a contract requiring a full complement of security officers throughout operating hours. G4S therefore required officers to remain on site during Friday lunchtimes.

Mr Cherfi claimed indirect discrimination under regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003, alleging that the requirement prevented him from attending congregational prayers at a mosque and that G4S had refused to consider a suitable work pattern. The Employment Tribunal dismissed that claim, holding that the requirement was a proportionate means of achieving the legitimate aim of meeting the respondent’s operational and contractual needs. The appeal concerned whether the Tribunal had conducted the required balancing exercise and given adequate reasons.

1. Appeal dismissed. The Employment Tribunal had correctly identified the four elements of indirect discrimination under regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003. The requirement that Mr Cherfi remain on site was a provision, criterion or practice which disadvantaged him as a practising Muslim and required justification.
2. Justification required a balancing exercise between the discriminatory effect on the claimant and the employer’s reasonable needs. The Tribunal carried out that exercise, although its reasoning was concise. It considered that Mr Cherfi could pray on site, could work on Fridays, and had been offered alternative work arrangements involving Monday to Thursday work and possible weekend work. He was not pressured to accept weekend work.
3. The Tribunal also considered G4S’s position. The contractual requirement imposed financial penalties for breaches and created a risk to the continuation of the contract. Employing a replacement guard for the lunch period would be financially and practically impractical because guards were engaged for whole shifts.
4. The requirement was therefore a proportionate means of achieving the legitimate aim of meeting G4S’s operational needs. The discriminatory effect was limited to preventing attendance at congregational prayers away from the workplace during paid working hours.
5. Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 did not impose a prescribed form of reasoning. It operated as a guide rather than a straitjacket. The necessary information was reasonably apparent from the Tribunal’s decision, so there was no error of law.
6. Even if the justification had depended principally on cost, the approach in Woodcock v Cumbria Primary Care Trust was accepted. Cost may form part of proportionality where the cost of avoiding the discriminatory impact is disproportionate to the benefit of eliminating it. The Tribunal’s conclusion was one it was entitled to reach on the accepted evidence.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s decision sent to the parties on 15 December 2009, with reasons sent on 8 February 2010. Appeal dismissed.
• Employment Tribunal: dismissed the indirect religious discrimination claim, holding that the requirement to remain on site was a proportionate means of achieving a legitimate aim.