January 28, 2014

Employment e-Brief – Accomodating religious beliefs in the workplace

The recent coverage of Marks & Spencer’s policy which allows members of staff to refuse to serve customers trying to buy pork or alcohol has given us all food for thought when it comes to accommodating employees’ religious beliefs in the workplace.

Marks & Spencer faced criticism from hundreds of customers when, on two occasions, customers were forced to seek an alternative checkout in order to purchase their goods.  But should more employers be following their lead to prevent discrimination cases appearing ever more frequently in the employment tribunals?

We have seen far too often employers being issued with hefty compensation orders because their policies dealing with religious practice in the workplace have fallen foul of the legal requirements.  Only last year British Airways were ordered to pay €30,000 to employee Nadia Ewedia after she successfully argued before the European Court of Human Rights that she had been discriminated against by her employer when prevented from manifesting her Christian beliefs by wearing a visible cross necklace whilst at work.  So it should come as no surprise that employers would want to prevent these issues from arising in the first place.

Perhaps an understanding of the law and the dilemmas facing employers will put Marks & Spencer’s actions into perspective.

Under the Equality Act 2010, it is unlawful for an employer to indirectly discriminate against their employees by applying a provision, criterion or practice to all employees regardless of their religion or belief, but that has the effect of disadvantaging only employees of a particular religion or belief, unless the employer can justify their actions by showing it to be a proportionate means of achieving a legitimate business aim.

What constitutes ‘proportionate’ is judged objectively, balancing the needs of the employer against the discriminatory effect of the policy.  Factors which could be relevant might include: whether the proposed policy would have a direct detrimental effect on the customers of the business; whether the employee was aware at interview of what their job role would encompass or what terms were incorporated into their contract; and whether the employee would be given opportunities to work elsewhere within the company.  Each case would ultimately rest on its own facts.

It could be deemed therefore, that had Marks & Spencer not operated the policy in question, they would have had a defence to a discrimination claim based on the fact that the employees’ refusal could have had a direct detrimental effect on customers of the business.  Contrast this with the British Airways case where wearing a cross would not have encroached on the interests of others and we begin to see a slight pattern emerging, although uncertainty continues to be widespread.

Employers have to tread very carefully when it comes to balancing the religious beliefs of its employees against the requirements of the business and its customers.  While Marks & Spencer’s water-tight policy appears to be going over and above the legal requirements, it is arguable that the voluntary steps they have taken to accommodate their employees religious beliefs ensure that costly discrimination cases do not arise.  Where the only detriment to complain of is that customers may have to move to another checkout, this is surely a welcome alternative for employers eager to avoid the employment tribunal.

If you have any questions about this e-brief or would like further advice about zero hours contracts please do not hesitate to contact Philip Paget on 0113 227 0212.