Employer’s refusal to allow a Muslim to take time off to attend Friday prayers during working hours was objectively justified (TLT LLP)

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Employer’s refusal to allow a Muslim to take time off to attend Friday prayers during working hours was objectively justified

In the recent case of Cherfi v G4S Security Services Ltd, an employer’s refusal to allow a Muslim employee time off on Friday lunchtimes to attend the mosque for prayers was found to be objectively justified.

Background

Previous case law has established that where an employer operates a rule, policy or practice which has the effect of preventing an employee from taking time off to pray, or requires the employee to work on a religious day of rest, such action will likely be regarded as indirect religious discrimination unless the employer can show that the requirement is objectively justified.

Facts

Mr Cherfi, a Muslim, worked for G4S Security Services as a security guard at a client’s site in Highgate. He would regularly leave the site on Friday lunchtimes to attend a mosque in Finsbury Park.  In October 2008, Mr Cherfi was told that he could no longer leave the site on Friday lunchtimes as G4S was contractually obliged to ensure that a specified number of security guards were present throughout operating hours including during their lunch break (for which they were paid).

There was a prayer room at the Highgate site and G4S also offered to amend Mr Cherfi’s contract to a Monday to Thursday pattern with the option to work a Saturday or Sunday instead of Fridays. Mr Cherfi refused to work during the weekend and claimed, among other things, that the requirement that he remain at work on Friday lunchtimes constituted indirect religious discrimination.

Decision

On appeal the EAT upheld the Tribunal’s original decision and dismissed Mr Cherfi’s indirect discrimination claim.

Although the requirement that Mr Cherfi work during Friday lunchtimes did place him at a disadvantage as a practising Muslim and consequently amounted to indirect religious discrimination, this treatment was objectively justified as it amounted to a proportionate means of achieving the legitimate aim of meeting the operational needs of G4S’ business.

In assessing whether the treatment could be objectively justified the Tribunal balanced the discriminatory effect of the treatment on Mr Cherfi and the reasonable needs of G4S.  This approach was upheld by the EAT.  The Tribunal noted in particular that:

G4S 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;
G4S could only run its business on a sound financial basis by engaging security guards to work shifts of at least eight hours;
Mr Cherfi had refused a variety of arrangements offered to accommodate his requirements and had the use of the prayer room on site; and
G4S had not relied on cost considerations alone to justify its practices.

Comment

Whilst the refusal to allow Mr Cherfi to attend the mosque for Friday prayers was held to be objectively justified, much emphasis was placed on the particular circumstances surrounding the case, e.g.:  the contract with the client specifying that security guards had to remain on site at all times (and the significant penalties for non-compliance), the availability of a prayer room and the employer’s willingness to offer Mr Cherfi an alternative working pattern.

To establish justification, employers will need to be able to demonstrate that there is a legitimate aim (a real business need) and that any discriminatory provision, criterion or practice is proportionate to that aim, i.e. that it is reasonably necessary in order to achieve that aim, and there are no less discriminatory means available.  In practice this will mean exploring all other options to ensure that discriminatory effects are minimised e.g. offering alternative working patterns or places to pray where appropriate.

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Tags: emp[loyment tribunal decision, G4S