M&S, Muslim employees and the tricky issue of reasonable accommodation
23 December 2013
Retailer Marks & Spencer is in the news again, and not this time for its Christmas advert. The ad was, incidentally, filmed in Temple – perhaps M&S bigwigs were on their way to getting some advice on how to deal with Muslim employees who didn’t want to serve pork and alcohol?
Anyway, the retailer has allowed Muslim employees to opt out of the requirement to serve pork and alcohol, both of which their religion prohibits – although it is not clear whether they are also prohibited from serving the products to other Muslims/non-Muslims. If Islam is anything like Judaism, which I am more familiar with, I imagine the practice may vary according to communities.
I write this from the Jewish learning extravaganza of Limmud, where I am presenting two sessions on religion and law, and I would like to thank M&S for providing me with a superb opening discussion. As to the law, well, perhaps the most relevant recent case is Mba (our post here), where a Christian care worker lost her appeal against an employer who wanted her to work on Sundays. Then there is Eweida, perhaps the high water mark of 2013’s case law for believers at work, in which British Airways was found to have breached an employee’s human rights by refusing to allow her to wear a Christian cross along with her uniform.
I don’t think there is an obvious right or wrong here. There is no clear obligation on M&S in law to allow Muslims (or Jews or vegetarians for that matter) not to serve a product they disagree with, but there may be an obligation, once the issue is raised, to consider it reasonably and at least try to make an accommodation if possible.
If it isn’t reasonably possible to accommodate workers’ beliefs, as in the case of Mba, M&S would have discharged its duties – I think. The law on accommodating religious believers is in a bit of flux at the moment following Eweida in Strasbourg, and the domestic courts are still ironing out the consequences – see, for example, Lady Hale’s statement on reasonable accommodation in the recent B&B gay couple refusal case (Bull v Hall):
I am more than ready to accept that the scope for reasonable accommodation is part of the proportionality assessment, at least in some cases. This is reinforced by the decision in Eweida…where the Strasbourg court abandoned its previous stance that there was no interference with an employee’s right to manifest her religion if it could be avoided by changing jobs. Rather, that possibility was to be taken into account in the overall proportionality assessment, which must therefore consider the extent to which it is reasonable to expect the employer to accommodate the employee’s right.
That does suggest a responsibility on an employer to at least try to accommodate employees’ beliefs, as long as they are genuinely held and there is a “sufficiently close and direct nexus between the act and the underlying belief” (see §82 of Eweida – note that the belief doesn’t have to be mandated by the religion).
Removing this from the legal context for a moment, though, isn’t it the duty of any good employer to at least try to accommodate the strong belief of an employee? Anyway, these are just some initial thoughts – I’m getting back to my conference. Happy holidays!
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