Should an employer allow staff time off if they want to pray at specific times? Or is this discriminatory against other staff members who do not take time off for prayer?
In Cherfi v G4S Security Services Ltd the Employment Appeals Tribunal (“EAT”) has held that refusing an employee permission to leave work to attend Friday prayers at a Mosque was a proportionate means of his employer achieving a legitimate aim – meeting the operational needs of the business. Given the limited discriminatory effect on C due to the alternative options open to him, the conclusion as to justification was one which the tribunal was entitled to reach.
Mr Cherfi, a Muslim, worked as a security guard in Highgate, where the client required all security officers to remain on site throughout their shifts. Consequently, Mr Cherfi was refused permission to travel to Friday prayers at a mosque in Finsbury Park. However, there was a prayer room on site and he had the option of working a Saturday or Sunday rather than Friday. Mr Cherfi claimed, among other things, that the provision, criterion or practice (“PCP”) of requiring him to remain at work on Friday lunchtimes constituted indirect religious discrimination under the Employment Equality (Religion or Belief) Regulations 2003. The relevant indirect discrimination provisions are now found in the Equality Act 2010.
The tribunal dismissed Mr Cherfi’s indirect discrimination claim. Although the PCP did place him at a disadvantage as a practising Muslim by not allowing him to attend prayers in congregation, the company would be in danger of financial penalties or even losing its contract with its client if a full complement of security staff was not on site throughout the day. Mr Cherfi had refused a variety of arrangements offered to accommodate his requirements. Thus, the tribunal found that the PCP was a proportionate means of achieving a legitimate aim – meeting the operational needs of the business. Mr Cherfi appealed, arguing that the tribunal had failed to properly balance the discriminatory effect on him with the reasonable needs of his employer.
Dismissing the appeal, the EAT held that the tribunal had carried out the necessary balancing act. It had considered both the reason why the company refused to allow Mr Cherfi to leave the site on Friday lunchtimes, and the impact of this on him. The discriminatory effect of the PCP was limited to preventing Mr Cherfi from attending congregational prayers during working hours. Neither he, nor any other religious Muslim, was prevented from praying at the Highgate site, nor prevented from working on a Friday. Furthermore, the case was not an example of cost alone being used to justify discrimination. However, even if it were, the EAT supported the view of its President, Mr Justice Underhill, in Woodcock v Cumbria Primary Care Trust, doubting the proposition that employers can never justify discriminating on cost grounds alone. Given the overall position and the alternatives open to Mr Cherfi, the conclusion as to justification was one which the tribunal was entitled to reach.
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