An employee, who was turned down for a job because she followed a Jewish practice preventing her from working Saturdays, has been successful in her claim for indirect discrimination on the grounds of her religious belief.
Employers must ensure that they do not adopt selection criteria, policies or other rules and procedures that would place employees or job applicants of a particular religion or belief at a disadvantage. The only exception is if the employer can show that they are justified in applying such a practice, which is not always easy to do.
In the recent case of Aurelie Fhima v Travel Jigsaw Ltd, Ms Fhima applied for a job with Travel Jigsaw. The post would have required her to work five out of every seven days.
During her interview, Ms Fhima explained that she observed Shabbat (the Jewish day of rest) and therefore, could not work Saturdays. She did however offer to work every Sunday as an alternative to requiring her to work a Saturday.
Ms Fhima received a letter from Travel Jigsaw advising her that: “After careful consideration we cannot offer you a position at this time. We are still looking for people who are flexible enough to work Saturdays.”
Ms Fhima challenged their decision but Travel Jigsaw did not change their mind. As a result, Ms Fhima raised a claim with the Employment Tribunal citing that she had been indirectly discriminated against on the grounds of her religious belief. She was successful and was awarded £16,700.
This case reminds all employers that the law surrounding unlawful discrimination applies to job applicants and not just employees.
There has been a number of indirect discrimination cases in relation to time off or rest days for religious reasons, all with differing results. Whether or not an employer will fall foul of the legislation will very much depend on their ability objectively to justify a policy or procedure that has a disparate impact on those following a particular religion or belief.
If an employee makes a request to observe a religious holiday or work a particular work pattern to abide by a religious practice, employers must consider such requests fairly, reasonably and with an open mind. For example, could the employee swap their shift, is temporary cover available and how inconvenient is the request?
Employers are not obliged to agree to every request made by an employee. If requests are considered reasonably and there are compelling business needs which reflect the interests of the organisation and staff, these may outweigh any disadvantage to an employee of the request being refused.