Does Refusing an Employee Time Off for Religious Purposes Constitute Religious Discrimination?
The Employment Appeal Tribunal had to consider whether an employer's refusal to grant an employee five consecutive weeks' leave in order to attend a series of religious festivals amounted to indirect religion or belief discrimination, in the case of...
... Gareddu v London Underground Ltd.
The Facts
Mr Gareddu (G) is a Roman Catholic and follows religious practices in Sardinia, which include attending a number of religious festivals. He was employed by London Underground Ltd, who had previously permitted him to take five consecutive weeks' annual leave, during which time he would return to Sardinia with his two brothers for the purposes of relaxing, visiting relatives and attending religious festivals.
In 2013, a new line manager advised Mr G that he would not be granted more than 15 consecutive days of holiday during the school summer holidays. However, the line manager did allow G to take five weeks' holiday in 2014 because G had already made arrangements. The line manager made it clear that this would be the last time this length of leave would be granted.
Notwithstanding the above, in November 2014, G made a holiday request for five consecutive weeks over July and August 2015. The request was refused. Mr G brought a claim of indirect religion/belief discrimination under s19 of the Equality Act 2010.
Employment Tribunal
The Employment Tribunal (ET) rejected G's claim, finding that his “asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September” was not made in good faith.
The ET accepted that the attendance of religious festivals may constitute a manifestation of religious belief. However, this did not apply in G's case as there was no evidence to support G's assertion that his religion required him to attend a specific set of festivals over the five week period.
Additionally, G had initially claimed he attended the same 17 festivals each year but it later transpired he had only attended 9 festivals in 2013 and had not attended any festivals in 2014 and 2015 due to injury. Additionally, G could not specify which of the festivals he was planning to attend, indicating this would be decided on with his family. From G's description, there had been no suggestion that attendance at any particular festival was obligatory for the purposes of his religious belief.
G appealed.
Employment Appeal Tribunal (EAT)
The EAT dismissed the appeal. It noted that the ET's finding was correct, particularly given that G had not attended exactly the same festivals each year.
In the EAT's view, G's description of the manifestation of his religious belief was not made in good faith. The ET were not saying G's religious belief was not genuine, merely that the the attendance of festivals over a five week period was not a genuine manifestation of that religious belief.
Best Practice
This case is very fact specific and fairly extreme in terms of the amount of annual leave requested. Employers should always act with caution if deciding whether a claim or assertion by an employee really is a genuine manifestation of a religion/belief.
It is interesting to note that the EAT did not discuss the employer's justification for only allowing 15 consecutive days holiday. It was perceived that it was unnecessary to address this issue given that the claim had been decided on the 'lack of good faith and genuineness of the asserted manifestation or belief'.
Quite separately, this case also highlights the issue of custom and practice and the potential pitfalls of implied contractual terms. Some may argue that the employer, in allowing G to take five consecutive weeks' holiday each year from 2009 up until 2014, had actually created an implied term into G's contract that he could take those same five weeks each and every year.