Cost Alone Can Justify Indirect Discrimination

[Thanks to Neil Addison of Palmyra Chambers for preparing this case summary]

The EAT (HHJ Judge Reid QC) has handed down its decision in the case of Cherfi v G4S Security Services Ltd which holds - albeit obiter - that an employer can rely upon cost alone in order to justify an otherwise indirecrtly discriminatory policy.

Mr Cherfi, a Muslim, was employed as a security guard and regularly left the site on Friday to attend a Mosque. This was stopped by G4S on the grounds that they were contractually obliged to ensure that the specified number of security guards were present throughout operating hours.

Mr Cherfi brought a claim for indirect religious discrimination alleging that G4S's policy placed Muslims at a particular disadvantage but the ET held that the financial implications for G4S of being in potential breach of contract justified the requirement.

Mr Cherfi relied on Cross v British Airways as authority that economic considerations could not justify a discriminatory policy whilst G4S relied on Woodcock v Cumbria Primary Care Trust as authority that they could.

The EAT followed Woodcock and, as an alternative finding, held that financial implications were sufficient to make the discriminatory policy reasonable and proportionate.