01 March 2017

In the recent case of Gareddu v London Underground, the Employment Appeal Tribunal (“EAT”) wrestled with the thorny issue of time off to attend religious festivals or other religious observance.

Mr Gareddu was a Roman Catholic from Italy. For a number of years he had sought, and been allowed, to take 5 consecutive weeks’ holiday over August each year, to travel to Sardinia and spend time with his family and attend a number of “ancient religious festivals” which took place over that period.

In 2013 there was a change of line manager and he was told that in future he would not be able to take more than 3 weeks’ holiday at a time during the school holidays.

He submitted a claim for indirect religious discrimination arguing that:

• His desire to attend festivals in Sardinia was a manifestation of his religious belief
• The employer’s policy of not allowing staff to take more than 3 weeks’ consecutive holidays, while applies equally to all staff, put (or would put) staff with his religious beliefs at a disadvantage, as they would thereby be unable to participate in the desired religious observance
• This policy could not be objectively justified

The tribunal rejected the claim, expressing scepticism about the Claimant’s evidence and ultimately concluding that his assertion that he needed to attend festivals in Sardinia over a 5 week period was not made in good faith. He did not in fact (contrary to his initial evidence) attend the same festivals every year, and it was a matter for family discussion as to which festivals to attend. His 5 weeks in Sardinia were more about spending time with his family than attending specific religious festivals. Essentially, there was no need for him to take these 5 consecutive weeks.

The EAT rejected the employee’s appeal, finding that the tribunal had been entitled to come to that conclusion. It was accepted that attending religious festivals may very well be a valid manifestation of the Claimant’s religious beliefs, but the Claimant had failed to show that he needed 5 weeks off to attend specific festivals. It was not fatal to the Claimant’s case that he also went to Sardinia to enjoy time with his family, but it seems that in this case that had been the main reason for the employee seeking 5 weeks off – there was not a rigid pattern of festivals that he had to attend that covered the whole 5 week period.

While the employee’s claim failed here, the case is a useful reminder of the issues facing employers when considering time off for religious festivals

• If the employer has a policy placing limits on the duration or timing of holidays or other time off, that could adversely impact on employees of a particular faith and could lead to claims. Employers may have to objectively justify their policy
• Arguably, those of a particular faith should not be given special treatment – priority for holidays, or access to special paid leave – if that would not be available to others. That could discriminate against employees with no faith. It is important to have a fair and equitable system for holidays and time off that treats adherents of all faiths equally (as well as those with no faith)

ACAS have published useful guidance on this area, also with advice on facilities for prayer in the workplace, impact of fasting, hours of work during Ramadan and other areas employers should be aware of.

All employers should take time to consider the religious beliefs of their employees and how they may be affected by working arrangements and policies. Expert advice should be sought.

Contact: Douglas Strang Senior Associate dst@bto.co.uk T. 0141 221 8012