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!

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

9 comments


  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.

    http://scallywagandvagabond.com/2013/12/marks-spencer-criticized-muslim-leaders-letting-muslim-checkout-staff-refuse-serve-shoppers-alcohol-pork/

  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.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech game birds Gay marriage gay rights Gaza Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: