With the excesses of the Festive Season now depressingly far behind us, M&S bosses may be wondering whether public memories have begun to fade about the outcry that arose following the store’s initial decision (and then swift apology) to allow Muslim shop assistants to refuse to serve pork and alcohol to customers.
Certainly, in the pre-Christmas shopping frenzy, asking a customer (however politely) to queue again at a different till due to the checkout assistant’s particular religious views is unlikely to go down well, and M&S found itself deluged with complaints on its Facebook page following its announcement (prior to its subsequent about-turn) that it permitted its employees to make such a request of customers.
However, what doesn’t appear to have been mentioned in the Press is that this issue already exists in another form, being under-18 year old checkout staff who are prohibited by law rather than religion from selling alcohol but are otherwise in a very similar position.
As anyone who has queued up at their local supermarket with a bottle or two will know, the particularly fresh-faced shop assistants (is it just me or do they seem to get younger every year?) are required to ring for their (over-18 year old) supervisor to authorise the sale of alcohol to a customer. The customer is not asked to move to a different checkout till, simply to wait a few moments until the supervisor arrives to process the transaction. In addition, unless it is just me, any attempt to use the self-service tills will inevitably lead to an unexpected item in the bagging area and, again, a need to wait for someone to come and clear it. I doubt Facebook complaints are posted about such minor delays, and so I wonder why the same process could not be used for employees who genuinely believe their religion prohibits them from selling alcohol?
One potential concern could be that this opens the floodgates to wider issues. Although the M&S issue arose in relation to Muslim shop workers, some commentators have argued that the same principle could apply by extension to other beliefs, with seemingly incredible results. The Telegraph reported that outraged customers were querying on Facebook whether vegetarians could refuse to sell meat, atheists could refuse to sell hot cross buns, or Christians could refuse to sell female clothing to male homosexuals (hmm, not sure about that one – would the shop assistant be asking customers to confirm their sexual orientation pre-sale?). Our own blog delved into more detail about the alcoholic nature of different products (what about alcohol in cleaning products, or foods made with alcohol such as Tiramisu?). Remember that the issue is not whether an objective reading of the relevant holy source prohibits certain things but whether the individual believes that to be the case, so debate around the level of extremism, which some of the wilder Telegraph examples would require is actually irrelevant.
However, debate about the proper response in such cases is not. From a practical perspective, the right approach where an employee raises issues about complying with certain aspects of his work on religious grounds will involve discussing these concerns to see if a proportionate solution can be arrived at. The wider (or more unusual) the range of products that the employee refuses to sell, the more likely it may be that a Tribunal would accept an employer’s decision to move the employee away from a check-out position or to terminate employment altogether if no alternative positions are available. But before you get there, and Telegraph scare-mongering aside, retailers may find that the ‘standard’ concern raised by Muslim employees about selling alcohol might be dealt with relatively easily using their existing systems for under-age employees. As a minimum it should be seen to be considered. That said, there could be force in an employer’s argument that the odd 16-17 year old presents a much lighter call upon its supervisory staff than a material number of religious objectors, especially at seasonal peaks for alcohol consumption, and so, as is often the case, each situation does need to be considered on its individual circumstances.