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

Indirect discrimination requires a provision, criterion or practice which places the claimant and the relevant religious group at a particular disadvantage, unless the employer proves that it is a proportionate means of achieving a legitimate aim. Proportionality necessarily requires an objective balance between the discriminatory impact and the employer’s legitimate operational needs.

A tribunal need not present that balancing exercise in a rigid or formulaic manner. It is sufficient if its reasons, read fairly and in context, show that it considered both sides of the equation. Compliance with contractual staffing obligations, the risk of substantial financial penalties or loss of a contract, and the impracticability of alternative staffing arrangements may justify a practice, particularly where the discriminatory impact is limited and workable alternatives are offered.

The claimant, a Muslim security guard, appealed against an Employment Tribunal’s dismissal of his claim of indirect discrimination under regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003.

His employer required security officers to remain on site throughout paid shifts because of its contract to provide continuous security cover. The claimant wished to leave the site on Friday lunchtimes to attend congregational prayers at a mosque. The employer offered a Monday-to-Thursday working pattern, with possible weekend work, but the claimant declined.

The Tribunal accepted that the requirement constituted a provision, criterion or practice and disadvantaged the claimant, but held that it was a proportionate means of achieving the legitimate aim of meeting the employer’s operational and contractual requirements. The appeal concerned whether the Tribunal had failed to balance the discriminatory effect against the employer’s needs and had failed to give adequate reasons.

1. Appeal dismissed. The Employment Tribunal’s conclusion that the requirement to remain on site was a proportionate means of achieving a legitimate aim was open to it on the evidence.
2. Indirect discrimination under regulation 3 involved four elements: application of a provision, criterion or practice equally to persons not sharing the claimant’s religion or belief; a particular disadvantage to persons sharing that religion or belief; disadvantage to the claimant personally; and failure by the employer to show proportionality. The word proportionate necessarily implied a balancing exercise between the parties’ respective needs.
3. The Tribunal had not failed to comply with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The rule did not prescribe a particular form of reasoning. It was a guide rather than a straitjacket, provided that the required matters could reasonably be identified from the determination.
4. The Tribunal had considered both sides of the proportionality assessment. On the claimant’s side, the requirement prevented attendance at congregational prayers away from the workplace, but did not prevent prayer in an available on-site room, working on Fridays, or obtaining work on other days without financial loss. The claimant was not pressured to accept weekend work.
5. On the employer’s side, breaches of the contractual staffing requirement exposed it to substantial financial penalties and the risk of losing the contract. Employing a replacement guard for a lunchtime absence was financially impracticable because guards were engaged for whole shifts. The conclusion was not merely an instance of cost alone being relied on, although the approach in Woodcock v Cumbria Primary Care Trust [2011] IRLR 119 was accepted as correct even if cost had been the sole consideration.

• Employment Tribunal: dismissed the claimant’s indirect religion-or-belief discrimination claim. The decision was sent on 15 December 2009, with reasons sent on 8 February 2010.
• Employment Appeal Tribunal: dismissed the appeal on 24 May 2011.