Avoiding religious discrimination is a balancing act

Making allowances for different religions is good business practice – but the challenge is striking the appropriate balance

Avoiding religious discrimination is a balancing act

Without a doubt, there are compelling reasons for businesses to embrace diversity at every level. “There are lots of studies that show that the more diverse a workforce, the more successful a business is likely to be” says Michelle Last, consultant solicitor at Keystone Law

Yet by accommodating people from different countries and racial groups, businesses also open their doors to a variety of faiths and religious beliefs. And employers should be well-prepared for the impact this can have on day-to-day business. “If people follow a particular religion, that could have an implication on the way that they operate in practice,” says Last. “For instance, they may need to take some time off work for a particular religious festival.”

Off the bat, there is no obligation on behalf of an employer to accept an employee’s request for a day off – or flexible hours – even if it is on religious grounds. If there is a strong enough business case to do so, an employer has every right to decline a request. “It might come at a particularly difficult time for an employer,” suggests Last. “Perhaps it’s a Jewish festival and the employee wants to take a Friday off but lots of completions happen that day.”

However, even if an employer has sound reason for refusing a request, this must be communicated concisely to the employee. “The employer shouldn’t dismiss any request out of hand; it should carefully consider each request and provide a measured and thought-out response,” says Last. “Employees are well aware of their right to be able to practice their religion without being discriminated against. So if an employer behaves unreasonably, the individual could have a claim of discrimination.”

Some people will also dress according to their faith or exclude alcohol and certain foods from their diet. Last believes employers may have less of a leg to stand on if they raise issue with a small alteration to somebody’s work attire. “Where the employee’s religious belief doesn’t impact on their work – for instance when an individual wants to wear a cross and it doesn’t impact on their health or safety – a tribunal is likely to require the employer to adopt a more reasonable position and try to accommodate the employee’s request wherever possible,” she explains. 

But there are circumstances when a person’s religious beliefs mean they are unable to do their job effectively. Last makes reference to a case where a relationship counsellor refused to offer counselling to a same-sex couple and was dismissed from his role as a result. “In those cases, a tribunal tends to say that the employer holds the trump card if it has a justification for requiring an individual to perform something that they don’t want to do for religious reasons,” she says.

In other cases, an employer may look to accommodate staff of a certain faith even if their beliefs mean they can’t carry out their role. In December 2013, Marks & Spencer announced that its Muslim staff could refuse service to customers purchasing alcohol or pork products. It came following reports that Muslim checkout staff at the retailer had asked customers buying alcohol to wait for another member of staff to become available. “That was one extreme example of an employer wanting to be so flexible and accommodate employees wherever possible, which most people would say should be commended, but there was a bit of a public outcry,” says Last. 

Indeed, other major retailers said they didn’t adopt such a policy and instead ask that all of their employees handle alcohol and pork, even if their religion prohibits their consumption. “It just goes to show the balancing exercise that employers face,” says Last. “But the main thing is they need to be able to show, whatever approach they have opted to take, that they have careful considered it.”

Successful religious discrimination claims might be rare but, as demonstrated by a case involving Tesco two years ago, employers can be punished if they’re deemed not to have reasonably accommodated the religious needs of staff. Two Muslim men working at a Tesco depot were awarded an undisclosed sum after restrictions were placed on the use of the on-site prayer room, which an employment tribunal deemed to be discriminatory on religious grounds. 

It’s safe to say however that an employer should have no issue when it comes to cracking down on the airing of views that would be deemed offensive by other employees. “If an individual has a religious belief that has a negative impact on either their colleagues or their clients, an employment tribunal is less likely to find that they have been discriminated against,” says Last. “The business interest will essentially take priority above any kind of personal interest.”

Businesses ultimately live or die on their reputation so the way that companies accommodate people of all faiths is more than just an internal concern. As Last says, “Who wants to be seen as the employer that discriminates against individuals based on their religious beliefs?” 

Adam Pescod
Adam Pescod

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