Over the festive period a controversy has emerged about how supermarkets deal with staff who for religious reasons won’t handle certain goods.
Marks & Spencer has apologised after a Muslim member of staff refused to sell a customer alcohol. The retailer said that where employees had religious beliefs that restricted what foods or drinks they could handle, it tried to place them in a “suitable role”. An M&S spokeswoman said: “We regret that in the case highlighted we were not following our own internal policy.”
The issue arose after an unnamed customer at a London store told the Telegraph they were “taken aback” when an “extremely apologetic” Muslim checkout worker asked them to wait for another till to become available.
There is clearly a variety of different supermarkets handle this issue differently:
Tesco said it treated each case on its merits, but said it “made no sense” to employ staff on a till who refused to touch certain items for religious reasons.
Asda said it would not deploy Muslims on tills who objected to handling alcohol, while Morrisons, which is based in Bradford where there is a large Muslim community, said it had widespread experience of dealing with the issue and would “respect and work around anyone’s wishes not to handle specific products for religious or cultural reasons”.
This debate has focused on what if any concessions supermarkets choose to make to Muslim employees in such circumstances. However, it’s also worth asking what they are legally required to do.
Until last year, the answer would be basically nothing. The courts would have said an employee’s freedom from duties they object to on religious grounds was guaranteed by their right to resign. If they found parts of their jobs objectionable they should leave it, and that was all the protection they needed.
This was never a very satisfactory doctrine, not least because many workers cannot simply hop from one job to another. The European Court of Human Rights recognised has now recognised as much. Last year, in Eweida and others v UK withdrew its past endorsement of the right to resign.
Based on the facts and the decision in Eweida, we can deduce some parameters. Indirect religious discrimination can be justified where there are ‘strong’ grounds such as health and safety or protecting another minority but not for ‘weak’ grounds like protecting brand image. That leaves supermarkets in a tricky position. It is hard to say what would happen in a case resolving with ‘moderate’ grounds like upsetting customers, disrupting work patterns or creating resentment among other employees. And it probably won’t be possible to answer until a court rules on such a case.
That’s not ideal – supermarkets are big employers and this leaves a lot of employees unclear as to their legal rights.