This question featured in the Financial Times 1 October 2011

Question:

I run a number of private nurseries for children aged two to four. One of my employees regularly leaves the site on a Friday to attend a mosque. I have a problem with this because, due to childcare regulations and child to teacher ratios, I need to get an extra member of staff to come into the classroom while she is not there and this is adding expense to the business. I have discussed the issue with the employee and stressed that my concerns are based on financial considerations but she has threatened to bring a claim against me for religious discrimination, saying that she is disadvantaged because she is a Muslim. Where do I stand?

Answer:

Preventing the employee from taking time off to pray is likely to be indirect discrimination unless it can be objectively justified. You would need to show that there is a genuine business need for all employees to be available during opening hours, including on Fridays. The requirement must be a proportionate means of meeting that business need. A tribunal would strike a balance between your business need and the discriminatory effect.

You would need to emphasise the requirement to comply with childcare regulations and child to teacher ratios. A recent case (Cherfi v G4S Security Services Ltd) suggested that cost alone may justify a discriminatory policy. There the employer’s refusal to allow a security guard to leave a client’s site on Friday lunchtimes to attend mosque did not amount to discrimination. Important factors were that the employer would suffer financial penalties and be at risk of losing the contract if it failed to ensure an adequate number of security guards on site. Further, the employer had a prayer room on site and the employee had rejected the offer of an alternative work pattern.

Discuss other working patterns with the employee that would leave her free on Fridays (perhaps part-time work or a job share) and investigate whether allowing her to pray in a room where she can have privacy could work. If she refuses to contemplate these and the additional costs are significant to your business, this along with the regulatory issues ought to provide sufficient justification to enable you to defend any claim.

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