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Richard Nicolle, employment partner at Denton Wilde Sapte says: "By agreeing that the employee does not have to drive the offending bus if others are available, the employer is taking on board the lessons learned in Fugler v MacMillan where a Jewish employee denied holiday on Yom Kippur successfully claimed religious discrimination as the employer did not give sufficient consideration as to whether staffing needs could be met another way. The extent to which employers must cater to employees' beliefs and sensitivities is not clear-cut. In the recent case of Ladele v London Borough of Islington a registrar successfully claimed direct and indirect race discrimination as a result of being required to participate in civil partnership services against her Christian belief. However, in McClintock v Department of Constitutional Affairs, a justice of the peace refused permission to be excused from cases where children may be adopted by same sex parents lost his discrimination case. The bus driver's employer is seeking to avoid a dispute by trying to accommodate his preference to drive buses not carrying the slogan. However, what would the position be if no such buses were available or the employer was unwilling to accommodate individual requests? Arguably, a failure to make adjustments where these could be achieved without significant disruption (as would have been the case with the registrar in the Ladele case) would constitute discrimination which could not be justified. However, if the only buses available carried the advertisement, there would appear to be a stronger defence for the employer if it took disciplinary action in these circumstances. First, there would be an argument that a Christian employee could comply with the requirement to drive buses carrying the slogan and further that even if such a requirement were to be construed as indirectly discriminatory, that it was nevertheless justifiable. In view of recent cases, there is a danger that the religion and belief regulations are being used by some employees to protest at issues which would appear to have a relatively limited direct effect on them. One can easily construe situations where bus drivers of other religious faiths may object to advertising carried on the bus, e.g. a Muslim employee objecting to an advertisement for a film containing certain depictions of women, or possibly advertisements for alcohol. Nevertheless, employers need to tread carefully in this very sensitive area."
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