Cherfi v G4S Security Services Ltd (Religion or Belief Discrimination) [2011] UKEAT 0379_10_2405

EAT
Cherfi v G4S Security Services Ltd (Religion or Belief Discrimination)
[2011] UKEAT 0379_10_2405 · 2011-05-24
[1]This is an appeal from a decision of an Employment Tribunal held at Watford made following a hearing on 9, 10 and 11 December 2009 and a discussion day on 11 December 2009. The decision was sent to the parties on 15 December 2009 with reasons sent to the parties on 8 February 2010.[2]By its decision the Tribunal rejected five of the Claimant’s six claims, but found that his claim of direct discrimination on the grounds of his religion succeeded in part because the Respondent had disciplined the Claimant for attending Friday lunchtime prayers at a mosque on 19 October 2007.[3]This appeal by the Claimant relates to one of the five rejected heads of claim. This was a claim that the Respondent had indirectly discriminated against the Claimant on the grounds of his religion by requiring him to remain at his place of work on Friday lunchtimes after 13 October 2008. It was said that the Respondent applied a provision, criterion or practice to the Claimant which placed him at a disadvantage as a practising Muslim and this amounted to discrimination by virtue of Reg 3 of the Employment Equality (Religion or Belief) Regulations 2003 . The Notice of Appeal identifies the disadvantage as not allowing the Claimant to attend prayers at a local mosque in congregation or alternatively by refusing to consider changes to the Claimant’s work pattern which would allow him to attend Friday prayers.[4]The Tribunal dismissed the claim holding that the provision, criterion or practice was a proportionate means of achieving a legitimate aim, namely the operational needs of the Respondent’s business.[5]The substantial point on the appeal was identified by HH Judge Peter Clark at the preliminary hearing as being whether the Employment Tribunal has failed to carry out a balancing exercise between the reasonable needs of the Respondent and the discriminatory effect on the Claimant.[6]Very shortly before the hearing of the appeal the Claimant sought to amend his Notice of Appeal to widen the grounds of appeal very substantially. The application to amend was heard at the outset of the appeal and was refused. The appeal therefore proceeded on the basis of the original grounds of appeal. The facts[7]The Claimant was employed by the Respondent in May 2001 as a security guard. Initially he worked nights but from 2003 up until June 2005 the Claimant was based permanently at a site in Euston working days. During this time he left work every Friday lunchtime to attend prayers at the local mosque.[8]In June 2005 the Respondent's contract at the Euston site came to an end and the Claimant became a floating guard mainly working at the Job Centre Plus site at Archway (“the Highgate site") but also on occasion elsewhere.[9]Ms Brooks took over from Mr Love as the line manager responsible for the Highgate site in November 2006 and remained in that position until September 2008. Neither Mr Love nor Ms Brooks attended regularly at the Highgate site and particularly did not attend at lunchtimes on Fridays. At this stage there was a very relaxed atmosphere about guards leaving the premises at lunchtime for breaks. The Claimant, although not permanent, still spent most of his time allocated to day duties at the Highgate site.[10]During this period the Claimant regularly left on Friday lunchtimes to attend the mosque at Finsbury Park. This involved two bus journeys each way and he would be away at least an hour (if not an hour and a quarter) each Friday lunchtime attending prayers. The supervisor at the Highgate site was quite content with this state of affairs as it appears that the other guards took lunch breaks of a similar duration from time to time during the week. The supervisor (although not Ms Brooks) was well aware that the Claimant was attending prayers at the local mosque on Friday lunchtimes.[11]On Friday 19 October 2007 the Claimant left the site to go to the mosque and the supervisor informed Ms Brooks of the fact. As a result the Claimant was suspended for an allegedly unauthorised absence from the site. After an investigation and a disciplinary hearing on 6 November 2007 the Claimant was given a verbal warning to stay on his file for three months. It was this which led to the finding by the Tribunal of direct discrimination.[12]The Claimant was then off sick for two weeks from 23 November but shortly after his return to work was given permission by Ms Brooks to attend the mosque on Friday lunchtimes.[13]The Claimant raised grievances over a variety of matters and on 7 October 2008 (by which time Ms Brooks had been reassigned to another area) Mr Stanley, head of operations, chaired a grievance Stage 2 hearing with the Claimant, at which the Claimant was represented by his union representative. One of the matters raised as a grievance issues was that he had been refused permission to attend lunchtime prayers on a Friday. Until this time the Claimant had continued to attend the mosque on Friday lunchtimes.[14]In respect of the Claimant's wish to be able to attend Friday prayers at the mosque, Mr Stanley indicated that it would now no longer be possible for the Claimant to attend Friday prayers because the Respondent's client, Land Securities Trillium (“Trillium”), required as part of its contract with the Respondent that a specified number of officers were assigned to each site (including Highgate) for a specified number of hours each day. Under the contract the Respondent had to provide a safety and security service covering the buildings, their contents, all workers present in the buildings and all members of the public who had lawful business there. A specified service provision applied to the full duration of the operating hours and therefore all security officers had to be in attendance during their lunch break (for which they were paid) because they had to be available on site for the full duration of the duty.[15]By letter dated 13 October 2008 Mr Stanley wrote to the Claimant setting out the position and suggesting that in order to support the Claimant's wish to attend the mosque on Friday, he was prepared to amend his current contract of employment to a Monday to Thursday pattern with the option to work a Saturday or Sunday. The letter effectively rejected the Claimant's grievances. However, the Claimant was not prepared to work on a Saturday or Sunday and in those circumstances the matter was left with the Claimant not working on a Friday.[16]The Tribunal found as a fact that that was indeed the commercial agreement between the Respondent and Trillium. The requirement for staff not to leave their site at lunchtime was confirmed by the Respondent in a memorandum dated 17 October 2008 sent to all relevant staff. In fact the Respondent would suffer financial penalties if breaches of the above provisions occurred, but more importantly it is apparent that breaches would put the continuation of the contract at risk.[17]The Claimant appealed against Mr Stanley's determination. The appeal was heard by Ms Tripp, an account director, on 22 December 2008. The Claimant then raised a further grievance. This was heard on 13 February 2009 by Mr Jones, the area manager for security services. This grievance was that the issue of the Claimant going to the mosque during his lunch break should not have been dealt with during the previous grievance hearing. By letter dated 27 February 2009 Mr Jones rejected this further grievance. By letter dated 2 March 2009 the Claimant appealed against Mr Jones’s decision. This appeal was dealt with by Mr Biggers, another area manager. He rejected the Claimant's appeal by letter dated 25 April 2009. By letter dated 30 April 2009 Ms Tripp dismissed all the Claimant's outstanding grievances. This exhausted the Respondent's internal dispute resolution process. On 1 May 2009 the Claimant presented his claim to the Tribunal, raising the current issue.[18]Since October 2008 the Claimant has not attended work on Fridays. The days have been taken either as sick leave, authorised annual leave or authorised unpaid leave, although by a letter dated 20 March 2009 from Mr Stanley the Claimant was told that the current position could not continue.[19]The Tribunal specifically found as a fact that the Respondent could only run its business properly and on a sound financial basis by engaging security guards working shifts of at least eight hours whether on a permanent or temporary basis and that the Claimant was not bullied or harassed into working on a Saturday or Sunday. Offers of work on those days were made from time to time to the Claimant, which he refused, but no pressure whatsoever was put on him to work those days. The Regulations[20]Regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003 (" RBR 2003 "), as amended by the Equality Act 2006 provides a definition of both direct discrimination in Regulation 3(1)(a) and of indirect discrimination in Regulation 3(1)(b). On the present appeal only indirect discrimination is relevant. The material provisions are as follows:
“3. Discrimination on grounds of religion or belief (1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if - (a) on the grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat other persons; (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but - (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and which A cannot show to be a proportionate means of achieving a legitimate aim. (2) …. (3) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
[21]Indirect discrimination as defined has four elements. It occurs when one party - the employer - applies a provision, criterion or practice which it applied, or would apply equally to persons not of the same belief as the other party - the employee - but which puts or would put persons of the same religion or belief as the other party - the employee - at a particular disadvantage; which puts that other party - the employee - at that disadvantage; and which cannot be shown to be a proportionate means of achieving a legitimate aim. Pleaded cases[22]The Claimant’s case as set out in his ET1 was:
“32. I believe that I had been subjected to indirect discrimination in that a criterion, practice or procedure has been applied to me that places me at a disadvantage as a practising Muslim by refusing to allow me to leave my place of work to attend prayers and by refusing to consider changes to my work which would allow me to attend Friday prayers.”
[23]The Respondent’s ET3 set out its response in these terms:
“5.2.8. The Respondent had a contract with Trillium to provide Security Officers to Trillium’s client, the Department of Work & Pensions at, amongst other sites, the JCP site at Highgate where the Claimant worked. In terms of that contract they are required to have security officers on site for the entire shift. In terms of the contract penalties will be imposed on the Respondent by Trillium if that requirement is not met or is broken. 5.2.9 The Claimant alleged that a memorandum of 17th October which had been sent to all employees engaged on the contract which the Respondent had with Trillium only applied to him and was therefore discriminatory. He claimed that other employees left the site at Highgate JCP, where he was engaged, at lunchtime. He declined to say who they were. The Respondent had no evidence that anyone was leaving the site during the working day. The Respondents would have taken action against any employee who had left the site contrary to their instructions, The Claimant was not subjected to any discrimination in respect of this matter. He was treated the same as all other employees. 5.2.10. The requirement that all officers remain on site for the duration of their shift and do not leave the premises applies to all employees. The Claimant has not been discriminated against directly or indirectly by the provision of such a requirement. It is in any event a proportionate means of achieving a legitimate aim namely the implementation of a contractual obligation with a client of the Respondent.”
Claimant’s submissions[24]The Claimant submitted that the Tribunal had correctly accepted that by requiring the Claimant to remain at his workplace on Friday lunchtimes after 13 October 2008 the Respondent had applied a provision, criterion or practice (“PCP”) to the Claimant under the RBR 2003 . His counsel accepted that this was, on the findings of the Tribunal, a requirement of the contract between the Respondent and Trillium, but submitted that the Tribunal had looked only at the legitimacy of the aim and not also at the proportionality of the PCP. It was submitted that the Tribunal had failed to weigh the impact on the Claimant.[25]Counsel pointed out that the PCP would impact similarly on other religious Muslims and that the Respondent by its own account employed a significant number of Muslims. She referred to Hardy & Hanson plc v Lax [2005] EWCA Civ 846 , in which the Court held that in deciding whether an indirectly discriminatory act was objectively justified under s.1(2)(b)(ii) of the Sex Discrimination Act 1975 there had to be an objective balance between the discriminatory effect of the condition and the reasonable needs of the party applying it, and submitted that the balancing act was missing from the Tribunal’s decision. It was an error for the Tribunal not to consider what different schemes might have been put in place which would have justified the discriminatory act: see Redcar & Cleveland BC v Bainbridge [2008] ICR 249 at paras 51 and 52 (an equal pay case). There might well be a good reason for a discriminatory rule which was not good enough to enable the discriminator to avoid liability because the rule had to be weighed against its impact.[26]It was submitted that there had been no weighing of the alternatives save for the suggestion that the Claimant change his job and the duty to accommodate the Claimant was not met simply by saying “Get another job or work Monday to Thursday.”[27]Counsel for the Claimant referred to Cross and others v British Airways plc [2005] IRLR 423 , and in particular paras 54, 58-59 and 70-73 of the judgment of the EAT delivered by Burton J. She stressed the reference at para 54 to the “ Hampson test”, (so called from the statement of Balcombe LJ in Hampson v Dept of Education and Science [1989] IRLR 69 at p72:
“In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party whom applies the condition”) and the passage at para 73: “It found the cost justification put forward by BA both appropriate in law to be considered, because it was satisfied that it was not the sole justification, and, on analysis, persuasive in the weighing exercise..”
She also drew attention to Allen and others v GMB [2008] EWCA Civ 810 , where at para 33 Maurice Kay LJ said “Secondly, although the objective was a legitimate one, it was not the only possible legitimate one. If it were achievable only by disproportionate means, then it would not be susceptible to justification. To conclude otherwise would licence disproportionality.” She suggested that the judgment of the European Court of Human Rights in Thlimmenos v Greece (2001) EHRR 15 at paras 43-47 showed that when discrimination was alleged a more robust line than usual had to be adopted in considering claims of justification.[28]She summarised this part of her argument by saying that there may have been a legitimate aim of providing cover, but this was not enough. The Employment Tribunal had to consider the proportionality of the measure and there was no indication that it had done so. The Tribunal had an obligation to direct itself on the law of justification and to give adequate reasons. It had failed to do so. It had failed to comply with the requirements of reg 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI No 1861, which are mandatory: see Greenwood v NWF Retail Ltd (unrep) UKEAT/0409/09/JOJ (esp at para 51). The decision was therefore flawed as a matter of law.[29]In these circumstances she submitted that the decision of the Tribunal was perverse within the criteria set by Yeboah v Crofton [2002] EWCA Civ 794 . Clear findings were needed as to the costs which would be incurred by the Respondent. There was no evidence that there would be substantial financial penalties. The Respondent’s own evidence had been that there would simply be a pro rata deduction from the amounts paid and there was no evidence that there had ever been any inquiry as to whether Trillium or the DWP would tolerate the Claimant’s absence for the purposes of communal prayer. Thus she concluded that the appropriate remedy was to allow the appeal and to substitute a finding on indirect discrimination. The Respondent’s case[30]Counsel for the Respondent pointed out that the decision was a matter of fact and judgment, referring to the judgment of Lord Neuberger MR in Ladele v Islington LBC [2009] EWCA Civ 1357 at paras 47 and 48 where he endorsed the observations of Pill LJ in Hardy & Hanson plc v Lax [2005] IRLR 726 as to the importance of “the respect due to the conclusions of the fact finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation.” He drew attention to the observations of Lord Denning MR in Retarded Children’s Aid Society v Day [1978] IRLR 128 at para 17:
“The decision is entrusted in the ordinary way by Parliament to the Tribunal. I do not think that it would be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning. Looking at it broadly and fairly, as long as they directed themselves properly and fairly on the facts and have not gone wrong in law, it seems to me that the Appeal Tribunal should not interfere with their decision even though they would themselves have come to a different decision.”
He reinforced this point by reference to ASLEF v Brady [2006] IRLR 576 at para 55 per Elias P.[31]So far as the assertion that the decision was perverse was concerned, he referred to Piggott Bros & Co Ltd v Jackson and others [1991] IRLR 309 as demonstrating that a decision could only be characterised as perverse if it was not a permissible option.[32]Counsel for the Respondent submitted that the Tribunal had accepted the evidence that there was no scope for variation of the contract to permit the Claimant to leave the site and that the Respondent could not realistically ask Trillium for permission for the Claimant to leave the site so as to create a deliberate and systematic breach of contract. The Tribunal had found that the Respondent could only run its business properly and on a sound financial basis by engaging security guards working on shifts of at least eight hours. It was not practicable to bring in another guard to cover the Claimant’s lunchtime absences. It had been conceded by the Claimant in his argument at the preliminary hearing that failing to provide staff for contractual hours might generally hinder the Respondent’s commercial relationship with Trillium. There was evidence that if Trillium’s demands were not met the contract could be lost. What was important was to have a full quota of employees on site throughout the day to cater for the event that there was disruption in the public area which by the nature of the premises could happen at any time.[33]Thus it was said that the Tribunal did not err in its finding that the PCP imposed was proportionate and did not fail to consider the discriminatory effect of the PCP on the Claimant. Its findings were that(i) he was not prevented from working on Fridays from 6 November 2008(ii) he was prevented from attending prayers at the local mosque in congregation on Friday lunchtimes(iii) to support his wish to attend the mosque on Friday, he was offered the option of amending his contract of employment to work at the Highgate site Monday to Thursday with the option of working elsewhere on Saturday or Sunday;(iv) he was not prepared to work on a Saturday or Sunday and the matter was left with him not working on a Friday;(v) he was not bullied or harassed into, and no pressure was put upon him, to work on a Saturday or Sunday but offers of work on those days were made from time to time which he refused.[34]A lthough the Tribunal did not expressly refer to these matters in para 9.4 of the Judgment it clearly considered them and carried out the necessary balancing exercise. Having set out its findings as to the discriminatory effect of the PCP on the Claimant in paras 9.2-9.3 of the Judgment, it then immediately considered the factors weighing in favour of the Respondent in para 9.4 of the Judgment and concluded that "In those circumstances the Tribunal's conclusion is that the provision, criterion or practice operated by the respondent as a proportionate means of achieving a legitimate aim, namely the operational needs of the respondent's business." The discriminatory effect of the PCP was limited. Neither the Claimant nor any other religious Muslim employed by the Respondent at the Highgate site was prevented from praying at the Highgate site where a room was available for prayers or prevented from working on a Friday. The discriminatory effect was merely to prevent the Claimant (or any other religious Muslim at the Highgate site) leaving the Highgate premises to attend congregational prayers during working hours.[35]He conceded that para 9.4 of the Tribunal’s judgment was a bit cryptic taken on its own and out of context but it had to be read in the context of the judgment as a whole.[36]So far as it was suggested that the justification was simply by reference to cost, this was not the case. The Respondent had a contractual obligation to Trillium. As a matter of commercial reality the need for an employer to comply with its customer’s contracts goes well beyond mere earning of profit: it goes to the very survival of the business. In any event he relied on the statement of Underhill J in Woodcock v. Cumbria Primary Care Trust [2011] IRLR 119 , (at para 32) that it was "hard to see the principled basis for a rule that [costs] considerations can never by themselves constitute sufficient justification or why they need the admixture of some other element in order to be legitimised. ....If the matter were free from authority it would seem to us that an employer should be entitled to seek to justify a measure, or a state of affairs, producing a discriminatory impact ...on the basis that the cost of avoiding that impact, or rectifying it, would be disproportionately high. That would not mean that employers would be able always or easily to avoid liability for indirect discrimination simply by pointing to the cost of avoiding or correcting it. There is an almost infinite variety of cases of "prima facie discrimination". In many cases the discriminatory impact in question may be such that the employer must avoid or correct it whatever the cost. But there may equally be cases where the impact is trivial and the cost of avoiding or correcting it enormous; and in such cases we cannot see why the principle of proportionality should not be applied in the ordinary way. We are not convinced that the single phrase in Hill and Stapleton on which this doctrinal structure is built - "solely because [avoiding discrimination] would involve increased costs" - is only explicable in the way that it was understood in Cross . As Mr Short submitted, it need mean no more than that it was not enough for an employer to say that avoiding discrimination would involve increased expenditure: he must show that the extent to which it would do so would indeed be disproportionate to the benefit in terms of eliminating the discriminatory impact.”[37]Counsel then referred to R (SB) v Governors of Denbigh High School [2006] UKHL 15 in support of the proposition that the refusal to allow the Claimant to leave the Highgate premises in order to attend the Finsbury Park mosque did not interfere with his right to manifest his religious beliefs and that even if it had it was proportionate to its purpose and objectively justified. Discussion[38]There could have been no doubt in the mind of the Claimant on receiving the judgment as to why he had lost this particular head of his claim. It is plain from the judgment that the Tribunal considered both the impact on the Claimant of the refusal to allow him to leave the site at lunchtime on Fridays to travel from Highgate to Finsbury Part to attend communal prayers and the reasons why the Respondent would not allow him to do so.[39]The argument that the judgment was defective in that it failed to comply with Rule 30(6) is in our judgment unsustainable. The terms of that rule appear to be mandatory, but there is nothing in the rule which sets out the manner in which the six classes of information required should be set out, and it seems to us that the rule does no more than codify what has always been required of a judgment in order to make it “ Meek compliant”, to use Sedley LJ’s phrase. It may well be that Tribunals are well advised to follow the guidance offered by Buxton LJ in Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240 , “I do not doubt that in future employment tribunals would be well advised to recite the terms of rule 30(6) and to indicate serially how their determination fulfils its requirements, if only to avoid unmeritorious appeals.” But as he continued “… the rule is surely intended to be a guide and not a straitjacket. Provided it can be reasonably spelled out from the determination of the employment tribunal that what rule 30(6) requires has been provided by that tribunal, then no error of law will have been committed.”[40]In the present case the complaint relates only to the alleged failure to comply with the requirements of the rule in respect of one of the six heads of complaint dealt with by the judgment. The complaint in the end amounted to little more than a reiteration of the substantive point that the Tribunal had erred in law in failing to carry out the balancing exercise required of it when considering the defence of justification mounted by the Respondent. It is difficult to see why, if the point were a real one, the defective form of the judgment was not said to affect the validity of the entirety of the judgment rather than just one of the six matters with which the Tribunal had to deal.[41]In any event the Tribunal did at paragraph 7.7 deal with the law, albeit in short form. There it correctly said :
“In respect of indirect discrimination this has four elements. It occurs when one party - the employer - applies a provision, criterion or practice which it applied, or would apply equally to persons not of the same belief as the other party - the employee - but which puts or would put persons of the same religion or belief as the other party - the employee - at a particular disadvantage; which puts that other party - the employee - at that disadvantage; and which cannot be shown to be a proportionate means of achieving a legitimate aim.”
The use of the word “proportionate” necessarily implies a balancing between the needs of the respective parties. In our view there is no substance in the submission that there was a failure to comply with the requirements of rule 30(6).[42]So far as that substantive point is concerned, the question is whether having correctly set out the law, the Tribunal applied it. Here the complaint is that the Tribunal in determining justification looked at the position only from the point of view of the employer and not also from that of the employee.[43]In our judgment the Tribunal did look at both halves of the equation. It did apply the Hampson test, albeit it did not refer to the case. At para9.1 it held that the Respondent by requiring the Claimant to remain at his workplace on a Friday lunchtime did apply a PCP to him under the RBR 2003 . At9.2 it went on to hold that the PCP did place the Claimant at a disadvantage as a practising Muslim by not allowing him to attend prayers in congregation or alternatively by refusing to consider a change to his work pattern which would allow him to attend Friday prayers. It was common ground that there was a prayer room available to him on site, though of course this did not meet his desire to attend prayers in congregation. At para9.3 the Tribunal held that he was not prevented from working on Fridays and that he was not pressurised to accept work on a Saturday and Sunday. There was however work available on those days at other sites which was offered to him, so that he would not suffer financially if he chose not to work on Fridays. Thus the Tribunal looked at the Claimant’s position[44]At para 9.4 the Tribunal dealt with the Respondent’s position. It referred to the financial consequences to the Respondent. There were the financial penalties involved vis a vis the client if the contract was broken. These were described by the Tribunal as “substantial”, though the Claimant took issue with the description. In our view the Tribunal was entitled to use this description since what was in issue was not only the actual financial penalty but also the danger of losing the contract altogether if there was a continued and persistent breach of the contract. The Tribunal also dealt with the financial impracticality of employing the Claimant for a part shift only, with the need to obtain another security guard for the Claimant’s lunch hour and having to pay the replacement for a whole shift (whole shifts being the basis on which security guards were employed).[45]Although the decision is perhaps not spelt out in as great detail as might perhaps have been desirable, in our judgment the Tribunal did do the necessary balancing act. It considered the positions of each side and it concluded that the requirement for the Claimant to remain on site was a proportionate means of achieving the Respondent’s legitimate aim of the operational needs which it had in complying with its contract. In our judgment this was not simply an instance of a cost consideration alone being used to justify the practice. However even if it were the case, we take as correct the view expressed by Underhill J in Woodcock v. Cumbria Primary Care Trust [2011] IRLR 119 a t para 32 and are of opinion that, given the overall position and the alternatives open to the Claimant, t he conclusion as to justification was one which, on the evidence which the Tribunal accepted, and on the law which the Tribunal correctly set out, was one it was entitled to reach. It cannot properly be suggested that the conclusion reached by the Tribunal was one which “licensed disproportionality”, to pick up the phrase used in Allen and others v GMB . Conclusion[46]It follows that the appeal must be dismissed.