Not in the case of Gareddu V London Underground said the Employment Appeal Tribunal, for our briefing on what employers should be aware of when asked for leave for religious purposes, please read on……
Mr Gareddu asked for 5 weeks consecutive holiday in August 2015 to travel to Sardinia to attend a number of religious events, and while previously this had been allowed a new Company policy of a maximum of 3 weeks leave and only 15 consecutive days in the summer meant that his request was refused. In response to the refusal Mr G claimed indirect discrimination i.e. that London Underground’s new policy adversely affected him in that he could no longer attend the Roman Catholic festivals (hence discrimination on grounds of his Religion.) Both the tribunal and the Employment Appeal Tribunal disagreed, in this case focussing particularly on the Claimant’s actual commitment to the festivals as opposed to his desire to have an extended summer holiday with his family.
All cases of this type are fact sensitive, both tribunals stopped short of analysing whether the new holiday rule (if it did indeed result in indirect discrimination on grounds of religion) was proportionate in the context of the business requirements and could be justified. In normal circumstances (had it not been established that the Claimant’s commitment to attending all the religious festivals was not as strong as he claimed) this would have been the way that discrimination claim would have been assessed, it’s also the way we as employers should approach requests for religious leave (extended or otherwise) i.e.
- If the leave request was to be refused, will this result in the individual not being able to attend a religious event that is significant to them? If yes (and so triggering the possibility of a finding of indirect discrimination,)
- Is it proportionate and reasonable that we should refuse the leave?
The second point is important. If there is no particular reason to refuse the leave being requested; if it is not a breach of an established holiday policy (employment contracts normally also state a maximum amount of consecutive leave that may be taken) and if that policy is reasonable and consistently applied; then the request should not be refused and to do so would amount to unjustified discrimination.
Further, employers need to consider the reasons for a holiday request, not just the request itself. If 2 employees request a holiday at the same time (but only one can be allowed to have holiday) and one of those requests is to attend a religious event important to the individual, it would be sensible to prioritise that request. Even if another employee had already been granted a holiday for the same period in respect of which the religious event request was being made, a prudent employer would ask the other individual whether they might consider swapping their holiday dates to facilitate the religiously motivated holiday. By following our advice, the analysis of this case as an example would be as follows:
- Was the leave request for religious purposes refused? (In this case, yes, hence triggering possible discrimination)
- Was the refusal reasonable? (In this case yes, because the employer’s established holiday policy was clear and because another employee was granted leave at the same time and operationally the employer could not release 2 staff)
- Could the employer reasonably have been expected to have done more to try and grant the request? (In this case the employer also asked the employee who had been granted holiday whether he could change dates, but as travel had already been arranged, he was not willing to do so.)
Looking at the above case our prudent employer would almost certainly be cleared of all counts of discrimination.
As with all of these things, common sense and sensitivity to the beliefs of others will carry the day.
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