Religious freedom at work: M&S decision gets to the meat of the matter

http://www.theguardian.com/money/work-blog/2013/dec/23/religious-freedom-marks-spencer-employers

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With the news that M&S staff have been allowed to refuse to serve customers buying alcohol or pork products on religious grounds, interesting issues are raised about rights of religious freedom in the workplace. Not least, did M&S have to implement this policy?

The simple answer is no, but it (as with any other employer) could have faced a risk of a claim for discrimination if it did not have good grounds to insist that its workers compromise their religious beliefs.

There have been a string of previous cases that have come before the courts where employees have sought to claim religious freedom at work. One of the most recent was in relation to Celestina Mba, a Christian care worker at Merton council who said she could not work on Sundays because it compromised her beliefs. The council refused her time off because it insisted there was a duty to make sure the children in its care had proper weekend supervision.

The case went to the court of appeal and Mba lost because it was decided that the council's policy was proportionate and "plainly and unarguably right".

In a separate case this year, the European court of human rights found in favour of Nadia Ewedia, who was an employee of British Airways. Her claim about being prevented from wearing a visible cross in the workplace was won because the court found that her jewellery was discreet, did not adversely affect her employer's corporate image, and did not encroach on the rights of others.

Following this case, the Equality and Human Rights Commission published good practice guidance for employers on managing religion and belief in the workplace. It sheds light on your rights and how the courts are likely to deal with future cases.

Key points from the guidance include:

• An employer must establish whether a religion or belief is genuine, and only question this in exceptional cases.

• A request from an employee in relation to his or her religion or belief may manifest itself in different ways. It could be visible (such as with clothing, appearance or jewellery); about taking time off work (for example, to pray); or about adapting their work duties (eg to avoid contact with alcohol).

• Employers should take requests seriously and try to accommodate the same unless there is a compelling reason not to.

• In deciding whether or not to accept a request, employers should consider a number of factors including disruption to the business; impact on work; health and safety implications; and how it impacts on other employees and customers.

• Employers should not make assumptions – for example, that those of the same religion necessarily share the same beliefs and practices.

Overall, the guidance encourages employers to take a balanced approach and engage with staff through discussion to find a solution.

Although M&S was not facing any claims for discrimination, it clearly decided to take such a balanced view voluntarily. Other retail outlets may or may not eventually decide to follow suit. But it is clear the courts have so far resisted attempts to establish an absolute right to religious privileges in the workplace. Such decisions are likely to remain at the discretion of the employer to come to an agreement with their employee, or be dealt with on a case-by-case basis by the courts.

Do you agree with M&S's decision? Have you or a colleague ever faced issues relating to religious freedom in the workplace?

• Philip Landau is an employment lawyer at Landau Zeffertt Weir Solicitors. You can follow him on Twitter.

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