Cherfi ­v­ G4S Security Services Limited

Case Round Up

In this month’s E ­ News, we look at whether an employer’s refusal to allow an employee time off to attend a mosque amounts to discrimination; whether Employment Tribunals have the power to apportion liability in discrimination cases when more than one party is found guilty of discrimination; and finally whether an employee remanded in custody pending a criminal trial was entitled to his wages.

Indirect Discrimination

In the case of Cherfi ­-v­- G4S Security Services Limited, the Employment Appeal Tribunal has upheld the Tribunal’s decision that an employer’s refusal to allow a security guard to leave the client’s site on Friday lunch times to attend his mosque did not amount to indirect discrimination on the grounds of Mr Cherfi’s religion.

Mr Cherfi, a Muslim, was employed as a security guard by G4S Security Services Limited (“G4S”). From 2005, he worked at a client’s site in Highgate. He regularly left the site on Friday lunchtimes to attend Finsbury Park Mosque. In October 2008, G4S informed Mr Cherfi that he could no longer leave the Highgate site at lunch times. The reason provided was that G4S was contractually required to ensure that a minimum number of security guards were present throughout operating hours.

G4S offered to vary Mr Cherfi’s contract to allow him to have Friday’s off and also provided a prayer room. Despite this, he stopped working Fridays by calling in sick, taking annual leave or unauthorised unpaid leave. Mr Cherfi brought a claim in the Employment Tribunal for indirect discrimination on the grounds of his religion.

The Employment Tribunal rejected Mr Cherfi’s claim and held that G4S were objectively justified in ensuring Mr Cherfi worked Fridays. It held:

  • G4S would suffer financial penalties and be at risk of losing the client contract.
  • G4S had offered Mr Cherfi weekend work so that he would not suffer financially.

The Tribunal held that the decision by G4S was a proportionate means of achieving a legitimate aim.

Mr Cherfi appealed to the Employment Appeal Tribunal and argued that when considering proportionality, the Tribunal had failed to carry out the balancing act between the need of the employer and the effect that he suffered. He also stated that the employer’s justification defence should not succeed as it was based on cost considerations alone.

The Employment Appeal Tribunal dismissed Mr Cherfi’s appeal and held that G4S had not relied on cost alone to justify the practice. However, if it had done so, the Employment Appeal Tribunal would have taken as correct the view previously expressed that costs alone could be a potential legitimate aim provided that the normal proportionality test is met. Whilst this is a helpful decision for employers, the Employment Appeal Tribunal was influenced by the fact that the employer had clearly offered the employee alternatives. The issue of whether costs alone could be a justification defence will be further considered in two cases early next year.

Apportionment for Damages

In the case of London Borough of Hackney ­v­ Sivanandan and Others, the Court considered the apportionment of liability in discrimination cases.

Mrs Sivanandan was a race equality advisor and was unsuccessful in applying for two employed positions with Hackney Action for Race Equality (HARE) in 1999.

Mrs Sivanandan had previously succeeded in claiming race discrimination against HARE in her capacity as a member.

She brought claims for sex discrimination and race discrimination arising from HARE’s failure to shortlist her for the employed position, also alleging that the failure constituted victimisation on the grounds of race on account of her previous claim.

There were several Respondents in the discrimination claims, the Director of HARE, the members of HARE, the Executive Committee of HARE, a Limited Company operating as HARE and an employee of HARE. The Employment Tribunal found that the Claimant had been victimised on the grounds of race by all of the Respondents.

The Employment Tribunal held that there should be no apportionment and the damages should be paid joint and severally by all Respondents.

In many cases, the employer and employee will have the same legal representatives. In these circumstances, the fact that a Tribunal does not apportion compensation between the Respondents should not cause a problem. However where the employer has become insolvent, or refuses to comply with the Tribunal’s Order, an employee found to have committed unlawful discrimination may ultimately pay 100% of the compensation award. It is therefore vital that employees are aware that they could end up paying for unlawful discrimination and so need to ensure that they conduct themselves in the workplace in a non­discriminatory fashion.

Unlawful Deduction from Wages

In the case of Burns ­v­ Santander UK Plc, the Employment Appeal Tribunal considered an unlawful deduction from wages claim from a prisoner on remand.

Mr Burns, a Branch Manager for Santander, was arrested in February 2009 and was charged with 13 criminal offences. He was remanded in custody pending trial, which took place in August 2009, and resulted in his conviction of common assault and assault with intent to commit sexual assault.

The bank kept Mr Burns’ job open but stopped his wages whilst he was on remand. Following his conviction and release from custody, the bank kept him on paid suspension pending disciplinary proceedings, which led to his dismissal.

Mr Burns brought a claim for unlawful deduction of wages. The Employment Tribunal dismissed his claim stating that his contractual entitlement to pay ended when he did not provide consideration for it by attending work.

Mr Burns appealed, arguing that he was entitled to be paid, as he was ready and willing to work, albeit that he was unavoidably prevented from doing so, the decision to be remanded in custody lay with the criminal court not with him.

The Employment Appeal Tribunal upheld the Tribunal’s decision not to award Mr Burns his unpaid wages. It held that although the Claimant had not been convicted of any offence at the time of the Respondent’s decision not to pay him, he had conducted himself in such a way that, according to the Judge in the Criminal Court, he should be deprived of his freedom and therefore deprived of his right to return to work.

The case gives comfort to employers and means that an employer can keep the status quo of employment and wait for the decision of the criminal courts before taking further action. It is important to note that holidays will continue to accrue during any time on remand.

In the news

The Bribery Act 2010 (“the Act”) comes into force on 1 July 2011. The Act introduces four new categories of offence:

(Directly or indirectly)

  • Offering, promising or giving a bribe to another person;
  • Requesting, agreeing to receive or accepting a bribe from another person;
  • Bribing a foreign public official; and
  • Failing to prevent bribery (which applies to companies and partnerships and is known as, “the corporate offence”).

It is a defence to the corporate offence to show that adequate procedures are in place to prevent bribery being committed by persons associated with the company or partnership i.e. employees, agents and other persons providing services on the company’s/partnership’s behalf. One such procedure is a robust anti­bribery and corruption policy that is appropriately implemented and monitored. The Act carries a maximum penalty of 10 years imprisonment for all new offences, except the corporate offence, which carries an unlimited fine.

It is therefore important that your procedures are reviewed in light of this to ensure that the organisation has a defence if such allegations arise.

Sejal Raja
sejal.raja@rlb­-law.com
© RadcliffesLeBrasseur
June 2011


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.