M&S, Muslim employees and the tricky issue of reasonable accommodation

23 December 2013 by

Screen Shot 2013-12-23 at 10.26.46Retailer 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 Eweidaperhaps 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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  1. Luis says:

    As I understand it some people are not allowed to eat non-halal food. If that is the case, should they also be allowed to refuse to handle it?

    However that would make things so complicated, as in a western supermarket most things are non-halal and in same cases it may be difficult to determine for sure if something is halal or not.

    But alcohol and pork are very easy to spot, so let’s go with them only and create a fuss!

    My point being, if you feel very strongly about your religious beliefs you should at least be consistent and not pick and choose what suits you and then complain that your religious rights are being ignored.

    Without exception, in all these religion-related cases people feel very strongly about a specific teaching or idea but ignore most of the others that don’t suit them.

  2. Perhaps sensing the potential fallout and animosity towards the Muslim community, Muslim leaders have since spoken out against Marks & Spencer, telling that they owed the Muslim employees any special treatment and should have mandated that they do what they were paid to do, irrespective of their faith. The debate in and of itself underscores the degree of tension in the community towards Islamists and leaders are wanton to play down notions that this is par for the course on their end….and once again riling up emotions and perceptions.


  3. What annoys me the most about this ‘accommodation’ is that it’s all about religious beliefs. What about the strongly held beliefs of non-religious people (be they humanist, philosophical or whatever)? They are considered to either be non-existent or inferior.

    1. Will says:

      They are also protected under the Equality Act 2010.
      See: http://www.legislation.gov.uk/ukpga/2010/15/section/10

  4. dyfedwyn says:

    Very helpful post. Thank you.

  5. Gerard says:

    It is possible that the worker is making a political point. If the arguments of accommodation of belief are extended we soon find our selves in a state of apartite.
    For example could a first aider decline to help if the victim had tripped in the alcohol area of the store.
    Would it be reasonable to refuse to be served by a non Muslim because they may of once consumed alcohol.
    Perhaps mix raced children should be excluded from society because of some writings about lions and lambs.
    Clearly the issue of rights is open to abuse. We learn not just from history that the religious are some of the worst abusers of humane rights.

  6. John Dowdle says:

    I think this outcome is ridiculous.
    The religious rules surely only state that “believers” should not personally consume certain products such as pork and alcohol. Where handling packaged products is concerned, this does not contravene such consumption requirements.
    The employees involved are not presumably expected to handle raw meat products or to pull pints or dispense glasses of alcohol – as in a pub. They are all simply retail products, packaged in such a way as to avoid personal contact with any of the products being sold.
    This also has a bearing on sales of products like birth control pills or condoms – both of which are packaged in such a way as to avoid personal contact.
    Retailers like Tesco and Sainsbury also sell petrol. Will the environmental beliefs of their employees have to be factored into decisions regarding where employees are asked to work?
    Where – and when – will all this religious nonsense end?

    1. Paul Crofts says:

      Answer: It won’t end because life, unfortunately, is complicated when it come to us human beings. Just get used to it rather than getting angry and all righteous. Question is what is reasonable for an employer to do? If its possible to meet religious, or indeed other sensibilities or human needs, without detriment to others, why wouldn’t a decent employer NOT do so? If they aren’t decent its rather academic and may therefore end up in court, as it should do when an employer acts unreasonably and discriminates on the basis or race, religion, disability, gender, etc.

    2. Luis says:

      I don’t think environmental or any non-religious “beliefs” count as much, it doesn’t matter how strongly people feel about them, at least I don’t see cases taken to court all the time because of them.

      However, find some obscure passage in some so-called holy book to back what is in essence your personal opinion and magically things change considerably.

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