Religious discrimination: Indirect discrimination is lawful if it can be justified

Just read an interesting article on recent cases of religious discrimination in UK and how the judgement means they can be lawful if they can be justified. In the second case mentioned with regards to Dhinsa v Serco the employee wasn't allowed to wear Kirpaan yet a Sikh Chaplin is? Also the Kirpaan being an article of faith would not have posed the threat which is perceived when words such as knife are wrongly used as the Kirpaan would have been worn discretely concealed under clothing and not have been identifiable.

Religious discrimination: Indirect discrimination is lawful if it can be justified http://www.shoosmiths.co.uk/news/3624.asp

27 June 2011

Two recent cases demonstrate that where an employer can justify its actions and has acted reasonably it will not be liable for indirect religious discrimination.

Legal background

Under the Equality Act 2010 it is unlawful to:

• treat an employee less favourably because of their religion or belief (direct discrimination); and
• apply a provision, criterion or practice which puts someone at a particular disadvantage because of their religion or belief (indirect discrimination).

An employer has a defence to a claim of indirect discrimination (but not direct discrimination) if it can show that the treatment was a:

proportionate means of achieving a legitimate aim (often referred to as “objective justification”).

Cases

In Cherfi v G4S Security Services Ltd, the Employment Appeal Tribunal upheld a tribunal’s decision that there had been no indirect discrimination where an employer required its employee to remain on site through his shift.
Mr Cherfi was employed as a security guard and, as a Muslim, regularly left the site half way through his shift on Friday to attend a mosque.
This practice was ended by G4S because they were contractually obliged to ensure that a specified number of security guards were present at the client’s site throughout the day.  They risked losing the contract if they failed to observe this requirement.
Mr Cherfi claimed indirect religious discrimination arguing that G4S's policy placed Muslims at a particular disadvantage.

The tribunal dismissed the claim holding that the requirement was a proportionate means of achieving a legitimate aim, namely the operational needs of the employer’s business: the financial implications for G4S of being in potential breach of contract justified the requirement.
The tribunal noted that there was a prayer room on site and that Mr Cherfi had been offered alternative work patterns which would have enabled him to attend mosque but he had turned these down.
Dhinsa v Serco was an employment tribunal decision concerning a Sikh prison officer who wished to wear a kirpan (a small ceremonial dagger worn in a sheath under clothes as one of the five "articles of faith" observed by Amritdhari Sikhs).

In that case, the tribunal held that a ban on prison officers carrying knives did not amount to indirect religious discrimination.
Although the policy was potentially indirectly discriminatory against Amritdhari Sikhs, it was justified because of the legitimate aim of ensuring safety and security within prisons.
The ban was also found to be proportionate: the employer had investigated the position carefully and confirmed their contractual obligations to their client before acting.

The employer, Serco ran the prison where the claimant worked under contact from the Prison Service.
There was evidence that Serco had not applied the policy "blindly" but had gone to considerable lengths to try and reach a mutually acceptable resolution to the issue.  It had had spoken to other prisons and a police constabulary about their approach to the kirpan and had sought clarification from its client (the Prison Service) as to what solutions (if any) might be available.

The tribunal was satisfied that had Serco breached the no knife policy this would have resulted in a financial penalty as well as undermining their own credibility as a contracted-out provider of prison services.
The employer had attempted to find a compromise, it suggested Mr Dhinsa wear a replica and had offered alternative work in the gatehouse, to which the ban might be temporarily disapplied, but both ideas were rejected.

Comment

In indirect discrimination cases a tribunal will balance the employer’s reason for its policy or requirement (the legitimate aim) against the detrimental impact on the individual.
An employer will also need to show that the action it took was appropriate and necessary in all the circumstances (i.e. it was implemented by proportionate means) and this usually boils down to being seen to be acting as reasonably as was possible.
Both these cases demonstrate how important it is for an employer not to impose any requirement or apply any policy rigidly without at least investigating whether a compromise might be possible.
Although religion and belief discrimination is a relatively new concept (only being introduced in 2003) the case law demonstrates a clear distinction between someone’s right to hold a belief or religion, which is a fundamental right that can not be interfered with and their right to manifest that religion or belief, which is not such an absolute right and may be modified by an employer’s own business requirements, reasonably imposed.