Refusal to allow mosque attendance was not indirect discrimination, rules tribunal

The EAT panel said that the company, referred to as 'R' in the EAT ruling, had a legitimate reason for stopping the security guard, 'C', from attending the Mosque and that its actions were proportionate to the impact on C.

The EAT rejected C's arguments that the tribunal had not properly weighed the impact of R's decision to stop C attending the Mosque on C.

"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," the EAT judges said in their ruling. 

"It considered the positions of each side and it concluded that the requirement for [C] to remain on site was a proportionate means of achieving [R'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," the ruling said.

Indirect discrimination, set out in the UK Equality Act, "occurs when one party - the employer - applies a provision, criterion or practice ... equally to persons not of the same belief as the other party - the employee - but which puts ... 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 EAT ruling said.

C worked as a security guard for R and attended a Mosque at Finsbury Park in London every Friday at lunchtime, the EAT ruling said. C was often away from his post for over an hour and in 2007 R suspended C for an unauthorised absence, the EAT ruling said. R issued C with a verbal warning following an investigation but with R's permission C continued to attend Friday prayers, the EAT ruling said.

In 2008 C raised a number of grievances with R, including that he had been refused permission to attend the Mosque on a Friday, the EAT ruling said. R explained that new contractors required a certain quota of security guards to be on-site at all times, the ruling said.

C refused R's offers of a change of shifts to enable him to attend the Mosque on Fridays. C took R to an Employment Tribunal and claimed both direct and indirect discrimination. The Tribunal found that C had been directly discriminated against when he had been disciplined for attending the Mosque in 2007, but rejected the view that there had been indirect discrimination.

The EAT rejected an argument from C that the original tribunal judges had broken the Employment Tribunals (Constitution and Rules of Procedure) Regulations by not explaining its decision-making properly, the ruling said.