Indirect Discrimination and Reliance on Defence of Economic Consideration

17th June 2011

In the recent case of Cherfi v G4S Security Services Limited it was found that cost factors can justify the indirect discrimination of employees.

In this particular case, Mr Cherfi who was employed as a security guard would leave the site at which he worked every Friday to attend his Mosque.

G4S Security Services Limited stopped him from doing so and informed Mr Cherfi that if they continued to allow him to leave early on Fridays they would have insufficient staff at the site to fulfill the contractual security requirements.

Mr Cherfi claimed that this policy was indirectly discriminatory and placed Muslims at a disadvantage.

When considering the above case the tribunal found that as it was not just financial penalties that G4S risked, but the whole contract itself. The tribunal agreed that if Mr Cherfi had continued to leave the site early on Fridays this would have resulted in the contract being withdrawn from G4S and subsequent significant financial loss. On this basis it stated that financial cost alone can justify indirect discrimination.

This judgement, however, should be taken in context. Although it appears that financial factors alone could justify indirect discrimination, it was only due to the severity of what would have happened, i.e. the rescinding of a contract and long term financial loss, that this was possible. The Judge spelt out how he saw the matter stating "it goes far beyond mere earning of profit, it goes to the very survival of the business".

Caution must therefore be had before relying solely on financial factors to justify the use of indirect discriminatory policies; least we not forget that damages in discrimination cases are uncapped. For further information contact employment@thomas-carroll.co.uk

Disclaimer article is designed to keep readers abreast of current developments. It is not intended to be a comprehensive statement of law and specialist legal advice should always be sought in relation to any particular circumstance. Therefore, Thomas, Carroll Management Services is unable to accept liability for any errors or facts or opinion contained within.