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can cost ever justify discrimination?

2 June 2011

A ‘provision, criterion or practice’ which puts one protected group (eg persons of a particular race, religion, sexual orientation, age etc) at a disadvantage amounts to indirect discrimination unless it can be justified as a ‘proportionate means of achieving a legitimate aim.’

Cost is often a major factor, but until recently, the view from tribunals was that cost alone is not enough. Some recent cases have called this stance into question, the latest being Cherfi v G4S Security Services Ltd.

Mr Cherfi, a Muslim, regularly left his employers site on Friday lunchtimes to attend mosque. Mr Cherfi was told by his employer that he could no longer do this as G4S were contractually obliged to ensure that a specified number of security guards were present throughout operating hours.

Although in this case the EAT decided that G4S had not relied on cost alone to justify its practices, the EAT did suggest that had it done so, cost by itself might constitute sufficient justification.

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