Sun, 13 Oct 2013
By Nabila Mallick
Recently I represented a white muslim convert[1]lady to Islam in a claim of direct and indirect religious discrimination under the Employment Equality (Religion or Belief) Regulations 2003[2]. The Direct Discrimination claim was that she was treated less favourably as a muslim in not being provided with uninterrupted breaks. The indirect discrimination claim was wider. She claimed that her Employer applied PCPs that put muslims at a particular disadvantage to non muslims, in that :-
(i)Supervisors and Duty managers were always required to carry their radios at all times (even during breaks) this resulted in prayer’s being interrupted;
(ii)Supervisors and Duty mangers were not permitted breaks at a time of their choosing.
(iii)Only the first aid room (in noisy part of the building) was made available for prayer.
In this case, the Claimant’s consultant psychiatrist was of the opinion that her situation in the workplace was the cause of her severe depression. She had been prescribed with a high dosage of citalopram. In her words, the room that she was provided with for the purposes of prayer was like having the radio on whilst she prayed- because of all conversations held outside of the room could be heard.
She was required to carry her workplace radio at all times so that colleagues could contact her, and when she objected to this, she was told that she could leave her radio at reception but would have to use the first aid room beside the reception so that she could be contacted if necessary. She brought a workplace grievance, where the Employer decided, without any investigation into what her prayer time involved, not to uphold her complaints .She therefore also claimed that the Employer’s failure to carry out any kind of investigation into her complaint regarding the need for uninterrupted prayer time was a continuity of the discrimination[3]. She required a uninterrupted break three - five minute to pray twice a day.
At a preliminary hearing, the question arose as to whether her claim had a reasonable prospect of success ? Perhaps that question can best be answered in what follows ;
On the 3rd October 2013, the Daily Mail reported[4] on a Tribunal case heard at the Bedford Tribunal between the 30th September 2013 to the 6th October 2013, where two Muslim men claimed that Tesco supermarket discriminated against Muslim employees by restricting access to the Prayer room.
The two muslim employees , were among a number of muslims who since 2006, had lobbied for a prayer room on site. In 2008, Tesco finally agreed to set aside a security office at the distribution depot, as a prayer room. A number of restrictions followed such as signing in and out to use the prayer room. Further they were not allowed to pray in groups but had to pray individually . A large number of muslim employees had complained that prayer restrictions were being used to harass them. In a four day hearing Bedford Tribunal awarded injury to feelings to the men for indirect discrimination. [5]
This case, like the Claimant I was representing, did not focus on compensatory award (since legal fees can often outweigh any award), but on employees obtaining a formal declaration of discrimination. The Declaration that muslims were put at an disadvantage by the requirement of having to be accessible throughout the whole time that the Employees was on the workplace premises[6], would obviously assist other muslim employees. My Claimant also sought the recommendation that employees wishing to pray during working day, be allowed uninterrupted prayer time in a quiet place.[7] Where a Respondent fails, without reasonable excuse, to follow a recommendation in respect of a complainant, the Tribunal can increase the amount of any compensation ordered or make an order for compensation if no such order was made previously.[8]
There has been much internet chat on the ‘ Tesco’ victory and some of it around allowing prayer in the workplace- Why should muslim employees be allowed more breaks ? Do Employers have to provide places to pray ? Do Employers have to provide time off to muslim Employees to pray? In order to establish whether the Employer had acted in contravention of Employment Equality (Religion or Belief) Regulations 2003 and its obligations under the ‘Regulations’ it is necessary to understand the nature of the relevant religious ritual and its practice.
Islamic law[9] contains guidelines and rules for all aspects of a muslim’s life, such as to how to pray, which is based on the Quran and Sunnah (which is practice of the prophet). The formal practice of worship in Islam is called salat (prayer). Its importance for muslims is indicated by its status as one of the five pillars of Islam ( five components of Islamic practice). People who find it physically difficult perform prayer sitting down. The only persons excused from prayer are those who are prepubescent, those menstruating, mentally ill, pregnant women , the elderly and those travelling. In order to perform prayer, muslims must be in a state of purity achieved through ablution and the wearing of clean clothes.
Obligatory prayer is prescribed at five periods of the day. These are measured according to the movement of the sun; (i) dawn (fajr) (ii) noon (zuhr) (iii) mid afternoon (Asr) (iv) j sunset(magrib) (v) nightfall (Isha). Under certain circumstances prayers can be combined, for instance sometimes the nature of daily activities preclude prayers zuhr and Asr[10] can be combined , as can magrib and Isha. Therefore each prayer is prescribed a specific time( timetables are available online for each region)- Many muslims will perform (or atleast wish to), at the prescribed because they rely on the Quran as stating ‘ that you should interrupt any activity you were previously doing to pray, as this betters the individual.’[11] For most employees praying needn’t disturb the work routine too much, as breaks can be timed to fit in with prayer times. Employees can pray anywhere as long as it is clean and quiet .
For Muslims, the purpose of prayer is communication with God’s divine energy, not only to provide spiritual benefit[12], but an inner cleansing of the mind- the supplicant is required to concentrate on the words being said and to achieve inner serenity. The difficulty with such meditation is that the supplicant is battling with having to close himself with not only outer distraction but inner distractions. Hence the need that place of prayer be clean and without distraction.
It is thought that congregational prayer (Jam’ah) is considered to have more social and spiritual benefit then praying oneself. When praying in congregation, the people stand in straight parallel rows behind the chosen leader (in the mosque, this is imam), facing the qibla (direction of mecca). The physical movement is not only a form of gentle physical exercise, like yoga but an essential part of the prayer. The bowing movement, is thought to allow one to show humility, a striving to refine oneself. Many muslim men prefer to pray with other men, rather than on their own.
Having established the nature of ritual that the Employee seeks to engage in. I would then turn to any relevant decisions. The most useful maybe those involving Christian employees who had claimed discrimination for restrictions brought against the practice of their faith in the way they wished.
In Williams-Drabble v Pathway Care Solutions (ET Case no. 2601718/04) a Tribunal held that an Christian Employee was discriminated against, when her Employer imposed a permanent change to her work rota which meant that she had to work on Sundays, preventing her from attending church on Sundays.
In Edge v Visual Security Services Ltd (2006) the main reason why the employer could not accommodate Mr Edge’s desire not to work on Sundays was that it was simply too much trouble’. There was the evidence that other employees could cover Sundays. The Tribunal found that PCP that all employees should work on Sundays from time to time irrespective of religion put Christians at disadvantage because it prevented attendance at church and Sunday rest. Similarly the requirement to work on Sunday was held to be indirect discrimination in Estorinho v Zoran jokic t/a Zorans Delicatessan case no: 2301487/06.
However, Ms C MBA v The Mayor and Burgesses of London Borough of Merton (UKEAT /0332/12/SM),the ET accepted that the Employer had a legitimate aim in applying a provision, criterion or practice which was requiring all the staff to work a Sunday shift on a roster basis. In this particular case the Employer justified its objective claiming a necessity for 24 hour 7 day protective carer by an appropriate gender mix of appropriately senior staff within budgetary constraints and the need for fair treatment of all employees.
In Fugler v MacMillan – London Hair Studios (ET case no 205 090/04), the Claimant was successful in a claim for direct discrimination, where the Employee was obliged to work on religious festival days. Similarly in Khan v NIC Hygiene ET case no. 1803250/04, a claim that an employee was prevented from conducting a once in a lifetime obligation of Hajj – the Islamic pilgrimage to mecca was also a successful religious discrimination claim.
The muslim lady I was representing had chosen to use rest breaks under Regulation 12 Working Time Regulations – uninterrupted period of not less than 20 minutes away from his/ her work station. Not to allow her to pray during these breaks would be in breach of the Regulations, directly and/ indirectly.
In not upholding her grievance against the denial of uninterrupted breaks and a quiet prayer room, the Employer had failed to meet the obligations not only of the Working Time Regulations, but of Employment Equality (Religion or Belief) Regulations 2003.There was no justification for requirement that she should be available every minute of the day. There were subordinates who could assist for the three /five minutes that it took to complete prayer once/ twice a day.
Prior to the implementation of the Religious discrimination provisions, the UK courts had provided a narrow interpretation of (the relevant provision under which such protection to practice religion without discrimination could be achieved) Article 9, Ahmad v Inner London Education Authority (1998) and then Ahmad v United Kingdom [ 1982]. Mr Ahmad argued that the desire to attend congregational prayers on a Friday was a desire to ‘manifest his religion in practice and observance,’ a right under Article 9. Lord Denning held :
‘I think that Mr Ahmad’s right to manifest his religion in practice and observance’ must be subject to the rights of the education authorities under the contract and to the interests of children to whom he is paid to teach. I see nothing in the European convention to give Mr Ahmad any right to manifest his religion on Friday afternoons in derogation of his contract of employment: and certainly not on full pay.’
The European Court of Human Rights also dismissed Mr Ahmad’s claim. In restating its position that Article 9 (1) rights must necessarily be subject to Article 9(2) limitations, the court held that freedom of religion ‘may as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom. Mr Ahmad’s situation was his employment contract. To successfully assert that his Article 9 (1) right trumped the contract, he would have to effectively show that ‘he was required by Islam to disregard his continuing contractual obligations…and to attend the mosque during school time
However, the decision of Ahmad was before the coming into force of the 2003 provisions ,the christian Sunday working cases demonstrate the degree of protection provided by Employment Equality (Religion or Belief) Regulations 2003. Managers should give consideration as how to balance the needs of the business and the desire of employees to pray. Employees can lawfully be expected to make up for any lost working time through prayer breaks .Bearing in mind the times of day that the muslim prayer falls there is no reason why normal working breaks can’t be used. Employers concerned by Employees leaving the workplace to attend mosques, should consider providing rooms large enough for congregational prayers and be mindful of the fact that Employees may wish to pray together on days apart from Friday.
Conclusion
In conclusion, it is my opinion that Employers must ensure that they have an understanding of the relevant faith ritual that they are confronted with and seek to accommodate the Employee’s desire to engage in those rituals otherwise they must have legitimate business reasons for not doing so. There can be no good reason for not allowing employees a place to pray during contractual/ agreed break times. Or for that matter providing muslim employees their breaks around prayer times. Employers must not adopt a ‘can’t be bothered approach,’ otherwise they will risk liability.
A claim challenging the failure to provide a quiet place to pray, without restrictions will have a reasonable prospect of success.
The article is only the opinion of the writer. She studied Islamic Law at undergraduate level and has a good understanding of practice of the Islamic faith. She is available to advise Employers and Employees.
1 About 5000 British people convert to Islam every year – and most are women – The Guardian 11th October 2013
2 2003 Regulations implement the Council Directive 2000/78/EC- equal framework for equal treatment in employment and occupation.
3 Regulation 3 (1) (a)- (b) The Employment Equality (Religion or belief) Regulations 2003
4 Muslim Supermarket workers win discrimination case against Tesco after bosses locked their prayer room and made them sign in and out – Daily Mail 3rd October 2013
5 There are sensationalist reports of the damages awarded but such an award was made within the Vento guidelines. Other such cases suggest that awards made for claims of a similar nature are in the lower band range.
6 The Equality Act gives the Tribunal the power to make declarations and recommendations.
7 Section 124 Equality Act 2010
8 Lycee Charles de Gaulle v Delambre UKEAT 0563/10- The Tribunal recommended that what was required in the Respondent’s organisation, in the Tribunal’s point of view, is a complete change of culture, beginning at the top and cascading down, through the organisation to every level, in relation to its understanding of its obligations as an Employer.’
9 The four schools of sunni thought were explained by Dr Tim Winter, a Professor at Cambridge University ‘ Understanding the Four Madh’abs’ (2006)
10 Employers concerned by disruption caused by prayers outside of break times, can discuss with Employees as to whether they are agreeable to combining prayers.
11 Quran Verse 6.9
12 The Royal College of psychiatry ‘ we are becoming increasingly aware of ways in which some aspects of spirituality can offer real benefits for mental health’ -Spirituality and Mental Health.
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