Empire HR Podcast No.3 - When work and religion clash

Podcast No.3 is now available where we explore the recent case with Transport for London and the muslim bus driver who stopped to have a prayer. We look at the facts surrounding the case and why Transport for London did not take action against the bus driver. We also look at the wider issue of discrimination and consistency when assessing disciplinary action.

You can download the podcast here

When work and religion clash

A Muslim bus driver sparked anger and outrage recently when he stopped his passenger bus so he could pray.  The driver pulled over, placed a jacket on the floor, removed his shoes and knelt down to pray for five minutes.

The bus passengers were bemused and angry, with some apparently terrified that the bus was about to be blown up.

Following the incident, the driver didn’t face any disciplinary action, although Transport for London has issued an apology and spoken to the driver concerned.

But how much are employers expected to accommodate religious practices? 

Well, practicing Muslims are expected to pray five times a day and this can take up to 15 minutes.  Many Muslim’s will not require any special measures to be taken at work and more devout followers can often pray in an office or spare room during their break times.

Legislation prevents discrimination in the workplace for religious or philosophical belief and employers should bear in mind that this doesn’t just apply to traditional religions.  A recent case found that a strong belief in climate change was capable of being a belief for the purposes of discrimination legislation. 

In general, preventing an employee from taking time out so they can pray will constitute indirect discrimination. However, there is an exception to this if the employer can demonstrate that it’s objectively justified.

The problem in the bus driver’s case arose because he chose to stop and pray despite being in the middle of a bus route, causing disruption to traffic and the passengers on board. 

Transport for London clearly has a diverse workforce, and has taken steps to accommodate the requirements of its religious employees.  Some of its depots contain prayer rooms, and employees are able to pray between journeys.  The key issue here is whether Transport for London would be at risk of a claim if it had taken disciplinary action and dismissed the employee. 

A tribunal would consider all the circumstances surrounding the event.  It’s possible that a tribunal would find that the need to get passengers from A to B, without causing major disruption to London traffic, would be an objective justification to them preventing drivers from praying mid-route.  A tribunal would also consider if a five minute prayer break would impact upon the service, how often the employee needed to pray, and whether steps had been taken to accommodate his requirements.

However, Transport for London would still need to follow the correct disciplinary procedure – which must be fair and consistent.

Those who regularly travel in London will probably have experienced similar hold ups.  It has been known for drivers to stop mid route for cigarette breaks, toilet breaks, to go to the shops.  On one occasion, a bus driver even took a quick detour, taking his bus and passengers to his home.  Unless Transport for London had taken disciplinary action in each of these cases, it would have been extremely risky to take action because a driver stopped to pray.

For employers, it can be very difficult to balance the needs of religious employees with the needs of the business.

Should this driver have been sacked?  Has the incident been blown out of proportion because the driver was Muslim, or because of the perceived terrorism threat?  Or was the driver given special treatment just because he was a Muslim?

Post your comments below...

New Media Breakfast Inverness

We still have a few places left for the New Media Breakfast at Kingsmills Hotel in Inverness tomorrow (18th February).  If you would like to find out more about New and Social Media and how it can help your organisation please book your place here

Abercrombie & Fitch Podcast

We've just released a podcast with comments from Steve Cook about the Abercrombie & Fitch story and why other clients shouldn't follow their lead.

You can subscribe to the podcast here.


When you get to the page, Episode 2 (Abercrombie & Fitch) may not be listed by iTunes yet however, if you "SUBSCRIBE TO PODCAST" Episode 2 will automatically download for you.

Empire HR’s advice for businesses – do not follow Abercrombie & Fitch’s example!

Famous retailer Abercrombie & Fitch has sparked outrage in Aberdeen, after placing a controversial job advert outside its store.

The latest job advert stating “We are looking for cool and good looking people to represent our brands” has caused outrage and upset in the North East. 

The posting of the advert in Aberdeen’s Union Square has led to a local MSP calling for the advert to be removed, and has shocked the local community.

A spokesman for the Company has been quick to point out that the advert is not illegal, and does not breach any employment laws.

Empire HR recently highlighted that Abercrombie & Fitch was forced to defend a claim of Disability Discrimination last year, after an employee who had a prosthetic limb was kept off the shop floor as a result of the Companies 42 page ‘Look Policy’. 

However, the Company has rigorously defended its ‘Look Policy’, pointing out that they also have anti discrimination and harassment policies, as well as a diverse workforce.

Empire HR, a leading employment law and HR company has been quick to warn their clients against following the example of Abercrombie & Fitch. 

Steve Cook, CEO of Empire HR explains that “whilst the job advert is not actually illegal, it could lead to problems if a job applicant can prove that they didn’t get the job due to discrimination.  Of course, there is no legislation specifically preventing discrimination on the grounds of looks, but there is a risk that it could lead to a claim on the grounds of disability, age, or even sex discrimination”.

Mr Cook goes on to point out that “the danger is that a rejected older job applicant could claim that ‘cool’ infers ‘young’ and that they were turned down because they were too old.  Or a rejected disabled applicant may claim that ‘good looking’ means ‘physically perfect’ and that they didn’t get the job because they are disabled.”

This job advert does raise interesting points – the store clearly thrives on presenting an image of ‘coolness’ and their website features impossibly good looking men and women.  Those approached for job interviews in the recently opened Union Square centre have confirmed that good looking people were singled out, and they were not asked any questions relating to retail experience and skills.

So is it reasonable for a clothing retailer to simply recruit those who most closely reflect the image they want to present?  Businesses often spend large sums of money building up a brand and image, which are designed to target the type of customers they want to attract.  The shop assistants in a clothing shop will obviously be part of this image, so is it understandable that they should look a certain way?

However, perhaps Abercrombie has taken this a step too far?  Does the Company really need to have ‘model like’ shop assistants to sell its products?  Do we want to live in a society whereby the best looking people get the best jobs, and those of us with are not quite to perfect are left to take the not so good jobs?

 

Or should businesses be left to decide who they recruit?  Has employment law gone too far in protecting job applicants? 

What do you think?  Let us know by posting your comments below.


Other links to previous law suits against Abercrombie and Fitch include 2005 case and the widely reported case in the UK about Riam Dean's prosthetic arm

Adverse Weather Conditions

Empire HR has been inundated with requests for help from businesses throughout the North East following the recent winter weather.

The leading employment law and HR company has seen enquires relating to the poor weather soar, with many businesses finding that it difficult to cope in the face of worsening conditions.

Steve Cook, CEO of Empire HR explains: “The winter weather has caused serious problems for businesses throughout the UK this month, largely caused by the difficulties experienced by commuters. Coupled with school closures, the weather has led to absence levels soaring. Hopefully, we are over the worst, but it is worrying that the weather continues to cause such disruption to businesses during these difficult economic times.”

As the poor weather continues, how can businesses ensure they are able to cope during periods of extreme weather?

Although it may be impossible to avoid the entire impact of severe weather, it’s likely that taking a few simple steps could make a real difference. Therefore, the Empire HR team has been advising businesses on steps they can take to reduce disruption and how to deal with staff absences caused by the weather.

• Identifying key roles within the business means you can anticipate which roles absolutely must be covered if the weather is so severe that the person who normally carries out the role is unable to get to the office. This will lead on to considering how the role can be carried out in their absence. This is key to drafting a contingency plan to cover all emergency situations. Knowing that the essential staff are trained and aware of what they need to do in this sort of situation is invaluable.

• It is worth considering whether employees who cannot get into the office could work from home for a day or two. This could actually turn out to be a great opportunity to get some paper work or admin out of the way. This arrangement will be beneficial to both parties and avoid a wasted day.

• Alternatively, this could be an opportunity to reap the benefits of a flexible working scheme. If an employee cannot get into the office, could they make up the hours over the next couple of weeks. Sitting down with the relevant employee and coming to an arrangement about making up the hours is likely to have the added benefit of building a good relationship with the employee since both parties will ultimately get what they want.

• Those with children are obviously likely to be affected by school closures. This is a difficult situation since parents will need to sort out alternative childcare arrangements at very short notice, or even stay at home themselves. This is compounded by the last minute nature of the closures since parents may only discover the school is closed once they have arrived at the gates. Careful consideration should be given to this situation with regards to how the employee’s family needs can be accommodated. Alternative working arrangements such as working from home can be invaluable, or perhaps they could take the day off as annual leave.

• Health and safety factors will also need to be taken into account. Will the car park present a risk of slipping and falling over? If it is a private car park, arrangements will need to be made to clear the snow and grit the area. If you have employees with mobility issues or pregnant employees, it would be prudent to reserve spaces close to the building entrance for them. If your employees have managed to get into the office, are you sure that they will be able to get home? If the snow is falling heavily and you know your employees have a long drive home, it would be sensible to allow them to leave earlier than normal so that they can miss the rush hour gridlock.

• A pressing concern for both employers and employees is pay. Should an employee expect to be paid for an absence caused by severe weather? There is no legislation stipulating this. Many businesses never pay an employee if they are absent for this reason. However, some choose to do so in the interests of maintaining good employee relations and as a considerate gesture. When considering the issue of pay, it is essential to note that if a contract or handbook states that these absences will be paid, this should be adhered to. In addition, if these absences have been paid in the past a precedent may have been set. If you are unsure of whether or not to pay employees who have not made it into the office, it is well worth considering seeking advice on the issue.

• It can be difficult if it is suspected that an employee is taking advantage of the weather to simply get an extra day off work. A return to work interview or investigation meeting can help ascertain the true circumstances surrounding an absence. Of course, regardless of the reason, all employees can be expected to follow the standard absence reporting procedures. A failure to do so, and/or misuse of the system can ultimately be dealt with through the disciplinary procedure.

Click here for a free adverse weather policy.  For more information about Empire HR please click here

January 2010 Bulletin

The Empire HR January Bulletin is now available to download, please click here