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Posts Tagged ‘religious discrimination’

Sundays may no longer hold the special significance that they once held but there are still a number of things that employers need to bear in mind when employing staff to work on Sundays. Here we look at some of the more common questions arising out of Sunday working.

Can I force my staff to work on Sundays?

Employees will be obliged to work on Sundays if their contract of employment or written statement of terms and conditions say that they must work on Sundays or would have to work on Sundays if they are asked to.

In the absence of any contractual obligation, employees cannot be forced to work on a Sunday unless their contract is varied. However, any variation would require the employee’s consent.

However, whatever your arrangements, you must ensure that you observe the Working Time Regulations 1998 for workers’ statutory rest periods.

Do I have to pay my staff an enhanced rate of pay for working on a Sunday?

Employees who work on Sundays do not have an automatic right to receive an enhanced rate of pay. However, if their contract of employment provides for a higher rate to be paid for Sunday work then an employer is obliged to pay that rate.

Do I have to take into account the religious beliefs of my Christian workforce?

Christian staff may have strong feelings about working on Sundays. All employees and workers (including temporary agency workers, freelance workers and consultants) have the right not to be discriminated against, harassed or victimised because of their religion or belief.

For this reason employers should try to accommodate any requests by Christian staff not to work on Sundays, for example by changing their shift patterns. Employers should also be careful not to put pressure on Christian staff to work on Sundays and should ensure that Christian staff who refuse to work on Sundays are not placed at a disadvantage, for example, when it comes to promotions or decisions relating to redundancy. The right not to be discriminated against on grounds of religion or belief also protects job applicants from receiving less favourable treatment.

In some circumstances an employer may be able to justify discrimination as long as there are objective grounds. For example, an employer may be justified in discriminating against Christians if Sunday working is essential to a role, although employers should also bear in mind that not all Christians will object to Sunday working and, therefore, a blanket ban on Christian applicants is likely to be viewed as being discriminatory.

What about shop and betting workers?

There are special rules relating to Sunday working for shop and betting workers. Most shop and betting workers have the option not to work on Sundays. ‘Protected’ shop and betting workers, however, have additional protection.

A ‘protected’ worker is one who:

has been continuously employed since 25 August 1994 as a shop worker or since 2 January 1995 as a betting worker and when his employment commenced was not required to work only on Sundays; or
is not required, under his contract of employment, to work on Sundays; and
has not consented (by signing an ‘opting-in notice’) to working on a Sunday.

Employees in this category who would otherwise be required, by their contracts of employment, to work on Sundays can opt-out of Sunday working as long as they are not employed solely to work on Sundays. An employee can opt-out by providing his employer with a signed ‘opting-out notice’ and this can be done at any time. An employee who has given an ‘opting-out’ notice is treated as having opted-out 3 months after the notice was given.

Employees who are ‘protected’ and those who have opted-out cannot be made to work on Sundays. They have the right not to be discriminated against if they refuse to work on Sundays and if they are dismissed or selected for redundancy for refusing to work on Sundays their dismissal is treated as being automatically unfair.

Employers who employ shop or betting staff to work on Sundays must, within 2 months of the commencement of the employment, provide the employee with an ‘explanatory statement’ setting out their rights in relation to Sunday working including their right to opt out, unless the employee has already given an ‘opting-out notice’.

The wording which is required for the ‘explanatory statement’ is set out in S.42 of the Employment Rights Act 1996. If an employer fails to provide a valid ‘explanatory statement’ and the worker subsequently gives an ‘opting-out notice’ the employee will be treated as having opted out 1 month after the notice was given rather than 3 months after it was given.

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A claim of indirect religious discrimination failed when an employer’s refusal to allow a Moslem employee leave from the work site for Friday midday prayers was held to be objectively justifiable. It is important to take the circumstances into account because this employer had made efforts to accommodate the religious belief. In this case, the employee had access to a prayer room on site and had been offered the chance to work shifts avoiding Fridays. The security firm (employer) concerned was committed by contract to provide a certain number of guards on the site at any time.  The case is Cherfi v G4S Security Services.

UK employment law distinguishes between direct and indirect discrimination and indirect discrimination is less clear cut than direct discrimination. Here claimant employees have to show that some provision, criterion or practice has been applied to them which in practice has the effect of putting people who share their protected characteristic (here being Moslem) at a disadvantage compared with others.

The EAT upheld the Tribunal’s judgment, finding that the Tribunal had carried out the necessary balancing exercise between the operational needs of the employer and the disadvantageous effect on the employee and was right to conclude there was no indirect discrimination.

The EAT said that it would have “taken as correct” the approach suggested in Woodcock v North Cumbria Primary Care Trust [2011] (another EAT case), that as long as a policy is proportionate, costs alone might justify that policy.

However, employers should consider all the factors in context before deciding to discriminate as the outcome could be expensive!

‘Religious belief’ includes for example Christianity, Islam, Judaism, Rastafarianism, Sikhism, Zoroastrianism and denominations or sects such as Methodism within Christianity and Sunni within Islam. It also covers philosophical beliefs such as humanism and atheism for example. Other philosophical beliefs may be protected if they meet certain characteristics, for example a belief in the importance of climate change. However a belief in white racial supremacy would not be protected because it is not compatible with human dignity and does not respect the rights of others. Such a belief would not meet the criteria laid down by the courts.

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An electrician and former soldier faces the sack for displaying a small palm cross in the window of his company van.

As reported by The Telegraph, Colin Atkinson, 64, from Wakefield, has been called to a disciplinary hearing at the housing association where he has worked for 15 years.

His bosses at the publicly funded Wakefield and District Housing (WDH) have demanded he remove the eight inch long cross made from woven palm leaves that sits on the dashboard of his van.

A spokesperson for the Council said “We do not allow employees to display any personal representations in our vehicles, although they are free to do so upon their person.”

This is interesting in that it is a reminder of a case in 2010 when the English courts held that it was not unlawful discrimination for the employer (British Airways) to ban Nadia Eweida, a Christian employee from wearing a cross at work.

The Court of Appeal ruled that to establish indirect religious discrimination, an identifiable section of a workforce (quite possibly a small one but not a solitary individual) must be shown to suffer a particular disadvantage. Ms Eweida is taking her case to the European Court of Human Rights.

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