It was reported in the UK press just before Christmas that Marks and Spencer was forced to apologise to a customer after a Muslim employee refused to handle alcohol and so declined, politely and apologetically, to serve a customer trying to buy a bottle of champagne.
This issue caused a bit of a Twitter storm, with The Independent online referring to social and religious commentators as Richard Dawkins (whose job role allegedly entails innovating for a secular world) and Katie Hopkins (former Apprentice contestant, though how that qualifies her as worth quoting on this point is an issue thus far left unresolved), all opposing M&S’s initial position. Our post on 27 December addressed this question from the perspective of whether retailers could properly deem the handling of certain products to be “safe” for specified religious groups, even with the benefit of consultation with local religious leaders. This post considers the separate question of the employer’s obligations to accommodate the individual employee’s objections.
Under the Equality Act 2010, it is unlawful for an employer to indirectly discriminate against an employee on grounds of religion or belief. Indirect discrimination would be found where an employer applied a provision, criterion or practice which on its face applies to everyone but which in practice puts a person at a disadvantage on grounds of his or her religion. To give a simple and pertinent example, the provision, criterion or practice could be either the requirement to carry out the checkout role in a food store and/or the requirement to deal with the full range of the store’s products when doing so, both of which this employee might be able to argue puts her at a disadvantage on the basis of the incompatibility of her religious beliefs and the obligation to handle certain products.
However, the indirect discrimination can be justified, and so made lawful, if the employer can show that its actions are “a proportionate means of achieving a legitimate aim”. This involves exploring whether there are any alternative arrangements which could reasonably be made to remove or limit the discriminatory effect of that provision, criterion or practice. On the assumption that operating no-pork, no alcohol, Kosher-only, etc. tills is a commercial non-starter, that leaves only moving the employee off the checkouts entirely.
What else? Prior to employment, an employer could at interview stage ensure that the candidate is fully aware of what the job role entails. If the individual identifies that he would not be able to handle certain products, then it is likely that a refusal to employ him in that role would be a proportionate means of achieving a legitimate aim (and therefore justified). A discussion might be called for as to the impact of his belief on the employee’s specific tasks – would it prevent him handling wrapped pork products, or merely the meat itself? What about alcohol in food or cleaning products, etc.? It is only by such an enquiry that the employer can determine the feasibility of any given role it might consider offering the employee. Otherwise it is making potentially unwarranted assumptions about what any particular religion means, usually to the employee’s detriment, and that is as discriminatory as being unwilling to consider the point at all. Such questions, asked sensitively and of all candidates for relevant roles, could not readily be argued to be discriminatory.
But what if the employee has already joined by the time his religious beliefs develop to the point where they create this sort of problem? Same rules apply – provided that there has been suitable consultation with the employee and consideration of possible alternatives before any final decision is made, the employer should be broadly beyond criticism. Refusals by staff to serve customers can clearly result in bad publicity for businesses and negative comment by the public as can be seen by some of the more hearty, not to say rabid, comment about M&S on some online forums. It would not be remotely difficult for M&S to demonstrate that customer satisfaction and convenience were legitimate aims, nor that requiring all its checkout staff to be able to deal with all its products without delay is a proportionate means of achieving this. An employee whose religious or similar philosophical views did not permit that would therefore not have a strong case in any legal proceedings arising as a result.