The Employment Appeal Tribunal has ruled on an appeal in Cherfi v G4S Security Services Ltd which involved an employee, a security guard, who claimed religious discrimination by his employer, when he wasn’t allowed time off work to go to a mosque on Friday lunchtimes.
The employee worked at a site in North London, and he wished to go to his mosque on Friday lunchtime. This involved a considerable amount of time away from work due to transport difficulties. The reason he was not allowed time off was due to the operational requirements of the business, as the employer was contracted to ensure that security staff remained on site during lunch breaks so that enough staff were available.
This was a question of indirect discrimination, where the employer imposes a requirement – here to stay on site during lunchtimes – which means that, in this case, for reasons of religious belief, an employee cannot comply with the requirement on a Friday. The employer is required to provide an objective justification for its requirement, or else it would be discriminating indirectly against that employee by imposing a requirement that it cannot justify.
The Employment Tribunal rejected the employee’s complaint, holding that the employer had established an objective justification for its practice of requiring employees to be on site when the employee wished to be absent for religious observance, and that outweighed the impact on the employee of this policy.
If the employee were to have been allowed time off, the employer would have breached its obligations to its client, risking penalty clauses and potentially losing the contract. The employer had taken several steps to help the employee, including removing him from the Friday rota and offering him work at weekends to make up his time. It was accepted that it would have been impractical to have an extra guard employed to cover just part of the employee’s shift.
When the employee appealed, he argued that the Tribunal had failed to consider the impact of the requirement to work on Friday on him and that it had simply focused on the problems faced by the employer. The EAT disagreed, and held that the Tribunal had carried out the necessary ‘balancing act’ to ensure that when an employer’s business needs and an employee’s personal needs collide, the employer could justify its decision to stick with its practice.
The lesson for employers from this case is that when faced with a possible indirect discrimination claim, a common example is a request to work part-time after maternity leave, the employer should look at both sides of the picture and consider the impact on the employee as well as on the business. An Employment Tribunal is required to take an objective view of the situation, and an employer that has a good case should not be afraid to put it forward.
In this case, the employee’s requirement to go off site created particular difficulties for the employer, and the employer had done what it could to reduce the impact of Friday working on the employee.