Holiday requests from employees are usually straightforward, but sometimes difficulties can arise. For example, what about an employee requesting a lengthy period of time off? Most employers limit holiday to no more than two consecutive weeks at a time, unless agreed otherwise on occasions.
The added complication can be where a request for holiday is linked to a “protected characteristic” under the Equality Act 2010 (the “protected characteristics” being age, disability, sex, race, sexual orientation, gender reassignment, pregnancy or maternity, marriage or civil partnership status, and religious or philosophical belief), as this can lead to discrimination claims if the request is refused. The most pertinent issue that crops up here is when requests are made by employees for holiday so that they can attend or recognise a religious festival, or a specific religious occasion which is important to the employee’s faith.
This issue was grappled with recently in the case of Gareddu v London Underground Ltd (2016). Mr Gareddu is a practising Roman Catholic from Sardinia. In August each year, he returns to Sardinia, where his family lives, to be with them and attend religious festivals. Between 2009 and 2013, London Underground permitted him to take five consecutive weeks’ annual leave in order to be able to attend those religious festivals. In 2014, a new manager was appointed, who refused permission for five consecutive weeks’ off. Mr Gareddu brought a claim of indirect discrimination on the grounds of his religious belief, arguing that attendance with his family at the festivals is a fundamental manifestation of his religious belief.
To establish indirect discrimination, an individual has to demonstrate to an Employment Tribunal that a provision, criteria or practice (a “PCP”) which is applied to all workers in a particular group creates a disadvantage for him or her (and potentially others who share the same or similar religion or belief). In other words, Mr Gareddu had to demonstrate that the practice of refusing five consecutive weeks’ off caused him a disadvantage. Even if a disadvantage is proved, an employer can defend such a claim if it can prove that the PCP is a proportionate means of achieving a legitimate aim. This could be reasons such as allowing the time-off causing operational difficulties within a business.
The Employment Tribunal who heard the case accepted that attendance at religious festivals could be a manifestation of a religious belief, and by extension, refusing to allow an employee to attend could cause a person with a religious belief to be disadvantaged. However, the Employment Tribunal did not accept that the five-week period requested by Mr Gareddu to attend 17 specific festivals was related to manifestation of his religious belief, as he determined what festivals to attend in discussion with his family. During evidence given by him, it became apparent that he had not attended the same 17 festivals every year, despite initially claiming that he had. This had not gone down particularly well with the Employment Tribunal, who said that his assertion that his religious belief required him to attend a specific set of festivals over a five-week period was not made in good faith.
The Employment Tribunal therefore dismissed his claim on the basis that the choice of which festivals to attend was a matter of family arrangement rather than religious belief. Mr Gareddu appealed to the Employment Appeal Tribunal (EAT), but he was not successful in his appeal. The EAT upheld the decision of the Employment Tribunal.
This case is not a basis for employers to refuse to grant any holiday requests for employees to attend religious festivals, particularly where this only is for a short-period of time and allowing the time off is therefore unlikely to create any operational difficulties. Employers still have an obligation to consider any such request and make reasonable efforts to accommodate it, unless it can be shown that refusal of a request is proportionate. The claim failed in this case due to some very specific facts that came out in the evidence provided. If Mr Gareddu had been able to demonstrate that he had attended all 17 festivals for many years, the Employment Tribunal would then have had to hear evidence from London Underground as to whether they could objectively justify the refusal.
The Equality and Human Rights Commission Code of Practice gives guidance to assist employers in regard to what could be reasonably accommodated within the workplace when it comes to religion and belief. The Code says that “manifestations of a religion or belief could include treating certain days as days for worship or rest; following a certain dress code; following a particular diet; or carrying out or avoiding certain practices” and advises employers to accommodate such matters wherever it is reasonably practicable to do so.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).