The law protects people against discrimination on the basis of a large number of protected characteristics, for example sex and race, but can discrimination ever be justified?
The short answer is sometimes! Where there is direct discrimination, for example a refusal to employ someone because they were gay, then that can never be justified, except for when the direct discrimination is on the grounds of age. However, where the discrimination is indirect, it is capable of justification.
Indirect discrimination occurs where:
A applies to B a provision, criterion or practice (PCP).
- B has a particular protected characteristic, for example religion or philosophical belief.
- A applies (or would apply) that PCP to persons not of the same religion or philosophical belief as B.
- The PCP puts or would put persons of B’s religion or philosophical belief at a particular disadvantage when compared to other persons.
- The PCP puts or would put B at that disadvantage.
- A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
There have been a couple of interesting cases recently on what can amount to a proportionate means of achieving a legitimate aim, that is when indirect discrimination may be justified.
The first of these is Dhinsa v Serco. In this case Mr Dhinsa was a Sikh prison officer. He wanted to wear a kirpan (ceremonial dagger), one of the five articles of faith worn by Amritdhari Sikhs, whilst on duty at the prison. Perhaps not surprisingly, his employers refused permission on the grounds of safety. Mr Dhinsa brought a claim of indirect religious discrimination.
The tribunal held that the ban did put Amritdhari Sikhs at a disadvantage because of their religious belief, even if it did not put Sikhs as a whole at a disadvantage as less than ten percent were Amritdhari Sikhs. The tribunal went on to find that, even if there was indirect discrimination, the ban was justified by the legitimate aim of promoting safety and security within the prison, and the ban was a proportionate means of achieving this aim.
The second case revolves around whether denying a person time off for a religious activity was indirect discrimination. In the case of Cherfi v G4S Security Services, Mr Cherfi was a Muslim employed as a security guard and worked at a client’s site. He wanted to leave the client’s site at lunchtime on Fridays to attend Mosque for Friday prayers. His employer refused to allow this and he brought a claim of religious discrimination. The tribunal held that balancing the operational needs of the employer against the discriminatory effect on the employee, the requirement for Mr Cherfi to remain on site on Friday afternoon was a proportionate means of achieving a legitimate aim. This decision was upheld on appeal to the Employment Appeal Tribunal.
It is worth noting that the Employment Appeal Tribunal indicated that, although in this case the employer’s arguments had not been solely down to cost, had cost been the only argument they would have been inclined to allow that. There has been conflicting authority as to whether cost alone can ever justify discrimination, but it appears that the courts will now be inclined to allow cost alone as the basis for justification in appropriate cases.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])