An Employment Tribunal has awarded £8,000 for loss of earnings, £7,500 for injury to feelings and £1,200 in legal costs to a Jewish lady who’s job application was rejected because that she was unable to work on Saturdays due to her observance of the Sabbath.
The employer in this case declined the job application, after interview, giving the reason that “We are still looking for people who are flexible enough to work on Saturday’s.” Ms Fhima had stated to the company, as a 24 hour operation, that she was willing to work at any other time including after nightfall on Saturday, and Sundays. However, she also stated that despite her requests the company had not been willing to alter their working practices and accommodate her.
In a statement, Ms Fhima’s solicitors stated ‘This case serves as an important reminder to employers of the obligations they have to job applicants, not just their employees. It also shows that many large employers still fail to understand the law surrounding discrimination.’
This case is a reminder of the provisions for protection from indirect discrimination afforded by the Equality Act 2010. Indirect Discrimination occurs, with respect to a protected characteristic, if a provision, criteria or practice puts a person, or a person’s protected group, at a particular disadvantage without being a proportionate means of achieving a legitimate aim.
Although a company may have a requirement to have staff able to work shifts on a Saturday, there should have been consideration of the resources of the company, the existing nature of their shift patterns and any other factors which could have afforded flexibility. Ultimately where a blanket provision, criteria or practice is enforced, where there could have otherwise been an accommodation it is unlikely to be considered a proportionate means of achieving an otherwise legitimate aim.
Employers should have a clear equality policy in place, understand the impact of discrimination and review their operating practices accordingly. It should be remembered that the Equality Act provides definitions which diverge from the common usage of the term “Discrimination“, which aligns to the comparable direct discrimination approach of less favourable treatment because of a protected characteristic. The definitions of discrimination also include those for indirect discrimination, harassment and victimisation and in the area of the protected characteristic of disability; “discrimination” occurs if an employee fails to proactively make reasonable adjustments for those with disabilities.
Jim Taylor LLM