Mr Cherfi has worked for G4S since 2001 and since 2005 has been mainly based at a Job Centre Plus in Highgate. It would appear that until about late 2007 there was a relaxed approach to him leaving work on Friday lunchtimes to attend a mosque for Friday prayers. However when he did so in October 2007 he was disciplined for an alleged unauthorised absence.
In the following year he was told that he could no longer leave work to attend the mosque on Fridays because the Respondent's client required a specific number of guards to be on the premises at all times. Due to the impracticality of being able to draft someone in to cover breaks the guards were to remain on the premises when taking their lunch.
The premises had a prayer room that Mr Cherfi could use (his preference was to pray with fellow Muslims at the mosque) and G4S offered to amend his hours so that he worked Monday to Thursday and then either Saturday or Sunday. Mr Cherfi was not prepared to work on a Saturday or a Sunday. He has therefore worked Monday to Thursday since and brought a claim for religious discrimination.
At first instance he claimed that the policy was direct discrimination against him as a Muslim. This claim failed and was not pursued to appeal.
He also alleged that it was indirect discrimination. This meant that by requiring him to not leave work on a Friday the Respondent was applying to him the same provision criteria or practice as it applied to everyone else but it put Muslims, and him, at a particular disadvantage and could not show the requirement to be justified.
The Employment Tribunal found that the requirement was proportionate bearing in mind the difficulties or arranging cover for the Claimant's absence and the risk of losing the contract if they did not comply with their client's requirements.
The EAT upheld this. They said that it was clear that the Tribunal considered the impact of the requirement on the Claimant and the reasons why the Respondent would not allow him to do so. The word "proportionate" implies a balancing of the needs of the respective parties and there was nothing to suggest that the Tribunal had failed to look at both halves of the equation.
The case is a useful reminder that religious requirements do not automatically "trump" the needs of the employer. It does not however mean that this will always be the case. If the Claimant's absences could easily have been covered, or if there was no contractual requirement that guards be on site at all times, if other solutions had not been offered, or had there not been a prayer room available then the outcome could have been different.
Given that there have been recent complaints by evangelical Christian groups that believers are being persecuted in the workplace it is also a useful illustration of the fact that it is not just Christian Claimants who can find themselves in difficulties in the Employment Tribunal.
The case is reported here.