Indirect discrimination can be justified on the basis of costs

Indirect discrimination is where an organisation applies a ‘provision, criterion or practice’ which disadvantages one group of individuals more than another. For example, imposing a requirement that a job is full-time only can indirectly disadvantage women who are more likely to have childcare responsibilities and perhaps require part-time work. This is to be distinguished from direct discrimination which is where individuals are treated less favourably, for example specifying that men only can apply for a job role.

The Equality Act 2010 does allow for companies to have a defence to rules or working practices that may indirectly discriminate where they can be justified objectively i.e. are fair for a particular reason. Previous case law has set the standard of such justification quite high, however in a recent case at the Employment Appeal Tribunal (Cherfi v G4S Security Services Ltd) has said that financial implications were sufficient to justify the discriminatory policy.

The case concerned an individual who worked as a security guard who wished to leave the work premises on Friday’s for an extended lunch period to allow him to attend prayers at a mosque. His employers (“G4S”) required all security guards to remain on site throughout the day because the client required security to be continuously present. If G4S did not provide this level of service to the client, contractual penalties were to be applied. The security guard claimed this policy amounted to indirect discrimination against his religion and belief.

The Employment Appeal Tribunal determined that although the policy was one that put him at a disadvantage, the requirement for security guards to be on site for the entire shift was in fact reasonable for G4S to be able to fulfil their contractual obligations, given the financial penalties that would be incurred by G4S if this did not happen. G4S had also offered the security guard alternatives, such as working on a weekend day instead of the Friday, but the he had not accepted these and this was accounted for in the ruling.

Please note in this case that a claim for direct discrimination on the grounds of religion was upheld in favour of the security guard because he had been disciplined for leaving the site on a Friday to attend prayers.

If you have any questions about direct of direct discrimination, please contact Theresa Mimnagh or Anna Rabone on 01273 236 236.