Member Article

Recent cases in which employers have successfully defended their decisions to enforce dress and diversity policies against Christian employees have led to comments by Christian campaigners that there is "disproportionate animosity" towards the Christian faith in the UK courts. 

The European Court of Human Rights in Strasbourg is currently considering challenges brought by Christian groups in four cases (including those of Mrs Eweida, Mr McFarlane and Mrs Ladele) and has ordered the Government to make a formal statement on whether it believes the previous decisions of the UK courts have infringed Christians' rights.  In the meantime, two recent decisions offer useful examples of circumstances in which employers were successful in objectively justifying indirect religious discrimination against employees of other faiths.

Indirect discrimination occurs where an employer applies a provision, criterion or practice (PCP) that puts people who share a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, or sexual orientation) at a particular disadvantage when compared with people who do not share that characteristic.  Where an indirectly discriminatory PCP has been established, employers must objectively justify the PCP by demonstrating that it is a proportionate means of achieving a legitimate aim. 

Employer did not discriminate when it refused Muslim security guard time off work to attend Mosque (Cherfi v G4S Security Services Ltd)

Mr Cherfi, a Muslim, worked as a security guard for G4S Security Services and was assigned to work at a particular site.  Previously Mr Cherfi had been allowed to leave the site to attend Friday prayers at a local mosque.  However, under the terms of a new contract with the site owner, G4S was obliged to ensure that there were a certain number of security personnel on site during operating hours. Mr Cherfi's departures on Friday lunchtimes meant that G4S could not fulfil its contractual obligation and it therefore withdrew its permission. 

G4S explored various options with the Claimant for resolving the problem, including changing his shift pattern so that he worked one day at the weekend instead of Fridays.  Mr Cherfi declined G4S's proposals but began unofficially to not appear for work on Fridays by taking holiday, sickness absence, or unauthorised unpaid leave on these days.  When G4S told Mr Cherfi that this could not continue, he raised an indirect religious discrimination claim.

The Employment Appeal Tribunal held that the requirement for employees to remain on site on Friday lunchtimes amounted to a PCP that placed Mr Cherfi as a practicing Muslim at a disadvantage. However, it was objectively justified.  Failure to comply with the contractual obligations would have resulted in financial penalties and potentially the loss of the contract. In addition, Mr Cherfi had been offered alternative work patterns (with no financial loss), and there was also a prayer room on site that he could have used.  In these circumstances, balancing the discriminatory impact on the claimant with the company's reasons for requiring him to remain on site, the requirement was a proportionate means of achieving the legitimate aim of meeting G4S's operational requirements. 

Prohibiting a Sikh prison officer from wearing a kirpan dagger did not amount to discrimination (Dhinsa v Serco and another)

Mr Dhinsa was a trainee prison officer employed by Serco.  Serco had a contract with HM Prison Service to manage the prison at which he worked.  Mr Dhinsa is an Amritdhari Sikh and habitually wore a "kirpan" (a small ceremonial dagger) under his clothes.  For Amritdhari Sikhs a kirpan is one of the five articles of faith followers must wear. 

Under the terms of its engagement Serco is required to comply with HM Prison Service policies, which prohibit employees from wearing kirpans inside prisons (although there was a limited exception for Sikh chaplains).  Serco informed Mr Dhinsa that he could not wear a kirpan whilst working inside the prison, and discussed alternatives solutions with him such as wearing a replica kirpan or a temporary reassignment to work outside the prison while the prison service completed its ongoing review, which might ultimately lead to a change in the policy.  Mr Dhinsa rejected these proposals and insisted on the right to wear a kirpan whilst at work.  Serco dismissed Mr Dhinsa, who brought claims of racial and religious discrimination. 

The racial discrimination claim failed because, although Sikhs are a distinct ethnic group, Amritdhari Sikhs share a common history, culture and geographical origin with Sikhs generally and are therefore not a distinct ethnic group in their own right. 

The employment tribunal found that, in relation to the religious discrimination claim, the prohibition on wearing a kirpan did amount to a PCP that placed Amritdhari Sikhs at a particular disadvantage.  However, the prohibition was to ensure the safety of employees, prisoners and visitors to the prison by minimising the chances of violent incidents involving weapons and this was a legitimate aim. 

The employment tribunal went on to consider a number of factors to determine whether the prohibition was proportionate.  It found that as only a small minority of practicing Sikhs were Amritdhari Sikhs who were required to wear a kirpan, the discriminatory impact on the group was relatively small (in fact there were only two employees in the prison service who had been affected by the ban).  Statistical evidence demonstrated the serious problem of assaults in prisons, and accordingly any knives or other tools that could potentially be used as weapons could only be carried in tightly controlled and restricted circumstances.  Serco had attempted to explore other options with Mr Dhinsa and had also discussed possible solutions and examples of practice with other prisons rather than "blindly" applying the policy.  Finally, if it had breached the policy Serco would have suffered a financial penalty and undermined its position as a contracted-out provider of prison services.   Balancing all of these factors, the employment tribunal found that Serco had objectively justified the PCP. 

 Impact on employers

• Whilst it is often possible to establish the existence of a legitimate aim, it is usually much more difficult in practice for employers to run successful objective justification arguments.  These two cases offer helpful guidance on the types of circumstances and factors that may assist an employer in showing that an indirectly discriminatory PCP is objectively justified.
  
• In both cases the employer had explored various alternative options with the employee and had effectively only taken action as a final resort.   Employers who do not go to these lengths before deciding to press ahead with a discriminatory policy may find the obstacle of objective justification much more difficult to overcome. 
  
• Previous case law has suggested that employers will not be able to show objective justification on the basis of cost alone.  In the Cherfi case, the EAT found that, as a matter of fact, the company had relied on a number of different considerations to objectively justify the requirement to remain on site.  But it went on to say that even if the company had relied solely on financial considerations, it agreed with the view expressed by the EAT in the recent case of Woodcock that cost alone could potentially justify a discriminatory PCP. 
  
• This is the second time in the past five months that the EAT has called into question the principle that cost alone cannot justify indirect discrimination.  It may therefore be possible for  employers to rely on cost alone to justify discriminatory decisions or practices, especially in circumstances where the impact of the discrimination is small and the costs of preventing it are disproportionately high