Saturday working and indirect religious discrimination
Just before Christmas, Acas updated its guidance on religion and belief in the workplace. The updated guidance features some useful information on a wide range of different religions, issues surrounding discrimination and includes the dates of the various religious festivals which might be useful to know. The update may be in light of a case which was reported in 2015, detailed below.
The 2015 of Fhima v Traveljigsaw Ltd, concerned a Jewish job applicant who was rejected for a role with the Respondent because she could not work on a Saturday. The tribunal found that the employer’s requirement for employees to work on a Saturday was indirect discrimination and the rule being imposed was not justified.
Indirect discrimination can be justified if the employer can establish that they had a proportionate means of achieving a legitimate aim. The prospective employer in this case could well have established that they had a legitimate aim – the requirement to serve customers and being available for calls, could potentially fulfil this requirement however, the employer would then need to prove that this was proportionate. Could they have achieved the same business need but in a way that was much fairer to the applicant? They should have considered alternatives which would still have let them achieve their business need but let her meet her religious obligations not to work on Saturdays. So, if the requirement was to perform five shifts on five different days (out of a possible seven) is there any reason why this could that not have been organised so that Saturday wasn’t necessarily a day that she worked?
Vital evidence in this case established that other employees were able to work shift patterns that didn’t involve them working on Saturdays, no employee was approached to ask if they would be willing to work Saturdays instead of Sundays and there was a computerised shift rota which could have enabled them to come up with different patterns. There was no evidence that the employer could produce to show they had considered any of these points and therefore their actions were considered discriminatory.