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M&S policy on serving pork and alcohol sparks debate

EH SolicitorsBlogM&S policy on serving pork and alcohol sparks debate

Jan

7

M&S policy on serving pork and alcohol sparks debate

M&S policy on serving pork and alcohol sparks debate

Over the Christmas break newspapers reported how a Marks and Spencer employee refused to serve a customer champagne and how the store has in place a policy which permits its Muslim staff to refuse to serve customers alcohol or pork. The store has said that it usually attempts to assign suitable roles to employees who cannot handle certain items because of their religious beliefs.

Sainsbury’s has been quoted as saying that it issued official guidelines that there was no reason why staff who did not drink alcohol or eat pork for religious reasons could not handle the goods. Tesco has been reported as saying that it “made no sense” to employ staff on a checkout who refused to touch certain items for religious reasons. On 5 Live the managing director of John Lewis said, “We certainly have never had any issue with our teams… we’ve not even had to have a policy on this. I would hope [staff] would understand that in their job this was probably going to be required.”

This story has been given a lot of media attention and sparked debate but as an employer, what should you be doing?

Potentially, the policy M&S has in place may be doing more harm than good. First, not all publicity is good publicity and many people, from a variety of communities, may consider this a step too far. Second, it is not necessary and M&S may be making life more difficult for itself; it may have been better to approach it on a case by case basis like Tesco. Third, if a company chooses to have such a policy it may have to assess all other religions and beliefs to ensure it is giving equal weighting across the board in terms of its policies. For example, veganism could potentially be classed as a belief and be protected under the Equality Act. Would M&S therefore have a policy in place about vegans not having to handle non-vegan products?

There is case law on this topic before the law changed in 2010 although it is a very good guide as to what will be acceptable conduct:

The EAT found that a Muslim teaching assistant who was dismissed for refusing to remove her veil whilst teaching had not been directly discriminated against. Teaching requirements in the circumstances of the case included face-to-face contact and therefore the comparator in this case (a person, not of the Muslim religion, who covered her face for whatever reason) would have also been dismissed. Azmi v Kirkless Metropolitan Council

So, if M&S had no policy in place concerning the serving of pork and alcohol and a claim was brought for indirect discrimination by a Muslim employee, this case suggests M&S would have a reasonable chance of winning. It would be a requirement of a cashier to process all products and by refusing to do this, the employee is arguably failing to fulfil duties which are pertinent to the job. The comparator would be, for example, a non Muslim employee who did not eat pork or drink alcohol for whatever reason and if the question was asked whether or not they would have been treated the same as the Muslim employee, the chances are that the answer would be yes as they would both be expected to process all products as the till.

British Airways operated a policy for its uniformed staff which forbade them wearing visible jewellery. The only exception was an item an employee was required to have for mandatory religious reasons, although this had to be covered by the uniform unless this impossible to do so. For example, Muslim hijabs and Sikh turbans were permitted to be on show, but Sikh bangles were required to be hidden by sleeves unless the uniform was short-sleeved.

Ms Eweida, a Christian employee, was prevented from wearing a visible cross. Her claims for indirect discrimination in the UK courts were unsuccessful as there was no requirement to wear a cross and British Airways’ policy was justified as a proportionate means of a legitimate aim. However, the European Court of Human Rights decided differently. It said that British Airways’ aim of the policy to project a certain corporate image was legitimate but this had been given too much weight and as the cross was discrete, it would not have detracted from her professional appearance. The fact that BA later amended its uniform policy to allow for the wearing of symbolic religious jewellery demonstrated that the initial prohibition was not of crucial importance. Eweida v British Airways plc

This case could support M&S and its policy and be a positive step forward and is possibly putting M&S ahead of the other in terms of personnel policies. This case together with other cases has highlighted the need for an employer to do everything possible to accommodate an employees’ wishes but also that the reasonable needs of the business also need to be taken into account. The weighting given to these needs should be carefully assessed and apportioned.

Therefore, such a policy is not necessary but if you do not have such a policy in place, make sure that you do respond to every issue raised by employees which deals with potential discrimination as fully as possible.

If as a business you do have a policy in place akin to the policy in place at M&S, make sure:

  • you have considered other religions and beliefs apt for similar treatment; and
  • if you have such a policy, make sure you enforce it correctly. The mistake M&S made was to put the Muslim employee on a checkout. This immediately puts them in the position where they are likely to have to serve alcohol and pork items.

For further information or to discuss an employment law query, please telephone Ian Hass on 0800 197 3560 or email him at [email protected].

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