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Posts Tagged ‘indirect discrimination’

A claim of indirect religious discrimination failed when an employer’s refusal to allow a Moslem employee leave from the work site for Friday midday prayers was held to be objectively justifiable. It is important to take the circumstances into account because this employer had made efforts to accommodate the religious belief. In this case, the employee had access to a prayer room on site and had been offered the chance to work shifts avoiding Fridays. The security firm (employer) concerned was committed by contract to provide a certain number of guards on the site at any time.  The case is Cherfi v G4S Security Services.

UK employment law distinguishes between direct and indirect discrimination and indirect discrimination is less clear cut than direct discrimination. Here claimant employees have to show that some provision, criterion or practice has been applied to them which in practice has the effect of putting people who share their protected characteristic (here being Moslem) at a disadvantage compared with others.

The EAT upheld the Tribunal’s judgment, finding that the Tribunal had carried out the necessary balancing exercise between the operational needs of the employer and the disadvantageous effect on the employee and was right to conclude there was no indirect discrimination.

The EAT said that it would have “taken as correct” the approach suggested in Woodcock v North Cumbria Primary Care Trust [2011] (another EAT case), that as long as a policy is proportionate, costs alone might justify that policy.

However, employers should consider all the factors in context before deciding to discriminate as the outcome could be expensive!

‘Religious belief’ includes for example Christianity, Islam, Judaism, Rastafarianism, Sikhism, Zoroastrianism and denominations or sects such as Methodism within Christianity and Sunni within Islam. It also covers philosophical beliefs such as humanism and atheism for example. Other philosophical beliefs may be protected if they meet certain characteristics, for example a belief in the importance of climate change. However a belief in white racial supremacy would not be protected because it is not compatible with human dignity and does not respect the rights of others. Such a belief would not meet the criteria laid down by the courts.

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