Time off work for religious observance – what is the legal position?

The Employment Appeal Tribunal (EAT) recently considered this issue in the case of Gareddu v London Underground Ltd.

The Facts

Mr Gareddu was employed by London Underground. He is a practising Roman Catholic from Sardinia. He claimed that his religious beliefs required him to travel to Sardinia each year (during August and September) in order to attend 17 religious festivals. In the past, his manager had approved his requests for five consecutive weeks’ leave on religious grounds. However, when a new manager refused (including on grounds that it was unfair to his colleagues) Mr Gareddu claimed that the refusal amounted to indirect religious discrimination.

The tribunal dismissed his claim. Whilst it accepted that participation in religious festivals might constitute a manifestation of religious belief, in this instance, the tribunal found that Mr Gareddu’s motivation for extended leave was to spend time with his family in Sardinia not because of his religious beliefs.

A determining factor in the tribunal’s decision was that whilst Mr Gareddu had claimed that his religious beliefs required him to attend all 17 festivals each year, in 2013 he had attended only nine. The tribunal concluded that Mr Gareddu’s particular description of his religious beliefs was not genuine and was not made in good faith.

Mr Gareddu appealed. His grounds of appeal included that the tribunal erred in its weighing up of his religious reasons for wanting the holiday against his non-religious family reasons. His argument being that mixed motivations would not detract from a belief amounting to a manifestation of religious belief.

The EAT upheld the tribunal’s decision. It observed that the tribunal was not saying that because Mr Gareddu had mixed motivations his religious belief was not genuine but rather, that the asserted religious belief was not genuine.

Points to Note

The decision, given the facts, is not surprising but it does raise some interesting issues for both employers and employees. Employers are often uncertain about how to deal with requests for time off for religious holidays. It’s worth bearing the following in mind when considering such requests:

• Time off for religious reasons does not fall outside the employee’s usual holiday entitlement. The employee would have to comply with the company’s annual leave policy in terms of notice given as well as the process of submitting the request for leave;
• Preventing an employee from taking time off for religious reasons can amount to indirect discrimination unless the employer can show a ‘legitimate aim’ and that it is a proportionate means of achieving that aim. If permission is refused, the employer must be able to justify its decision based on reasons which are unrelated to the employee’s religion;
• It is good practice to accommodate a request where possible;
• Employers should be mindful that it will not always be possible to book time off in advance. Some faiths follow the lunar calendar (such as Islam, Judaism and Sikhism), this means that religious days will differ from one year to the next;
• In light of our diverse society, it’s unlikely that HR/managers will be aware of all religious holidays. Useful information can be found on The Inter Faith Network’s website
• When considering a request for time off, judge each request on its merits. Employers can take into account factors such as: the needs of the business, cost-effectiveness, fairness to all staff and continuity of service;
• Before rejecting a request, employers should take steps to check if the business needs can be met in other ways. This would mean checking if colleagues are willing to provider cover or if staffing needs be met in other ways;
• Update your annual leave policy to ensure it cover requests for time off for religious holidays – this will help avoid any confusion and should ensure that a consistent approach is adopted where possible; and
• More generally, review whether the company has any practice, criterion or policy (PCP) which, whilst applied to all staff, has the effect of putting a particular group at a disadvantage. Such a PCP will be unlawful unless it can be objectively justified and is a proportionate means of achieving a legitimate aim.