Case update (2): Religious discrimination – Refusal of holiday

august calendarSummary: Can refusal of a five-week holiday to attend religious festivals be non-discriminatory, even without the need for the employer’s justification of its decision?

Yes, says the EAT in Gareddu v London Underground Ltd available here, if the request is not in fact a genuine manifestation of the employee’s religious belief.

Facts:  Mr Gareddu, the employee, was a practising Roman Catholic from Sardinia, Italy. He worked as a Quality Engineer for London Underground Ltd, the employer. Mr Gareddu lived and worked in the UK but would return to Sardinia, for the entire month of August, to visit his family and attend religious festivals.

Mr Gareddu had worked for London Underground for 25 years and had regularly taken five weeks off every summer. However, following a change of management, Mr Gareddu was told that he could no longer take such a long period of leave and that he would be unlikely to be allowed to take more than fifteen consecutive days of holiday in the future, which was the employer’s normal policy. This was because Mr Gareddu worked in a small team and having an employee on holiday for most of the school and summer holidays would not only impact service during one of its busiest seasons but also make it difficult for other members of his team to take any holiday off over summer.

Mr Gareddu raised a grievance about refusal of his five-week holiday and the employer rejected his grievance. It stated that requests for such an extended period leave were rare and usually only permitted for once in a lifetime events such as weddings, dream holidays and major religious observances. It also stated that attending these festivals was not a requirement of his faith, merely a personal preference.

Mr Gareddu brought an indirect disability discrimination claim on the basis that the policy of not allowing more than fifteen consecutive days’ holiday discriminated against his religion – a Sardinian Roman Catholic – and that there were 17 religious festivals during that five week summer period which he needed to attend.

The Tribunal rejected the claim. Whilst it accepted that attending religious festivals can be a manifestation of a religion, it found that Mr Gareddu asserting his religion required attendance of five weeks of religious festivals in August was not made in good faith.  The Tribunal noted in particular that Mr Gareddu had ultimately admitted that he did not in fact go to all 17 festivals every year and indeed had not been to any at all since 2013. The Tribunal agreed with the employer that attending these festivals was a personal preference and not a requirement of his faith or Catholic obligation.

Mr Gareddu appealed and the EAT rejected his appeal. It agreed with the Tribunal and found that attending five-weeks of festivals with his family was not a genuine manifestation of his belief. As Mr Gareddu did not genuinely believe it to be a religious requirement to take that time off, his claim failed without the employer needing to justify its decision.

Implications:  This case is helpful for employers in that it shows that if an employee does not genuinely believe the subject of his or her request to be a genuine manifestation of their belief, they will be unlikely to succeed in a religious discrimination claim.

However, employers do need to be careful to examine the reasons behind a request for annual leave on the basis of a religious holiday and/or time for prayer. It could be indirect discrimination for an employer to expect an employee to take annual leave on the same days every year and/or reject a request for annual leave to celebrate religious holidays and prayers.

Previous case law has shown that the category of religious and philosophical beliefs which qualify for protection is extremely broad, and it is recognised that manifestation of such beliefs can differ widely.  A person does not have to prove that the manifestation of their religion or belief is a core component of the religion or philosophical belief they follow.

If an employer cannot accommodate a request, or come to a compromise with the employee, then it is open to the employer to refuse the request.  Best practice would be to justify refusal of the request by showing that its practice/reason for refusal was a proportionate means of achieving a legitimate aim. For example, limiting holiday to no more than three weeks at a time was necessary in a small team in order to continue to provide a sufficient service.