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Legal Column: Employee’s request for time off on religious grounds not made in good faith

31st Mar 2017

Since legislation came into force preventing employers from discriminating against employees on grounds of religion, a number of cases have been argued where a manifestation of religion conflicts with an employers’ need to operate its business. In those cases, where an allowance can be made by the employer, a failure to do so might be considered discriminatory. Equally, however, an employer does not discriminate where it can show that a refusal amounts to a ‘proportionate means of achieving a legitimate aim’.

All such cases are predicated on the genuineness of the claim made by the employee. However that in itself must be demonstrated clearly – and if an employee cannot show that their claim is genuine, their case must fail. This is the situation that occurred in the recent case of Gareddu v London Underground Ltd (“LUL”) UKEAT 0086/16. Mr Gareddu was a practising Roman Catholic. He had been employed by LUL since 1990. From 2009 until 2013 he had been permitted to take five consecutive weeks of holiday in the summer, when he and his family travelled back to his birthplace of Sardinia where his mother still resided, in order to be together and attend religious festivals. In March 2013 Mr Gareddu was told by his manager that he would not be allowed to take such an extended period of leave in future, and would only be allowed 15 consecutive days during the school holiday period. Ultimately, his confirmed plans for 2014 were honoured, but his application for 5 weeks leave in 2015 was refused.

Mr Gareddu, therefore, brought a claim in the Employment Tribunal. He argued that it was part of his religious belief that in August, he attended ancient religious festivals in Sardinia along with his family. He alleged that a failure to allow him to attend amounted to indirect discrimination on grounds of religion.

The Employment Tribunal accepted that participation in such religious festivals might constitute a manifestation of his religious belief, they concluded that Mr Gareddu’s claim that he needed to attend festivals over a five week period was not made in good faith. They took account of the fact that his attendance at any particular festival was dependant on the views of his family and friends. Although he had sought to suggest to LUL that he attended the same festivals every year, he had not initially responded to a request from his employer to list them. When pressed, he had provided a list of 38 festivals he might attend subject to the views of his family, then later on a list of 17 festivals he wished to attend that he had attended annually since childhood. However, although he maintained that claim in evidence to the tribunal when cross-examined, he accepted that he had only attended 9 of those 17 in 2013 (being the last year when he was fit enough to attend).

The Tribunal took into account that Mr Gareddu regarded the gathering of his extended family in Sardinia as an important aspect of his request for the time off. Ultimately, they concluded that whilst he could claim that attendance at some particular festivals as being a manifestation of his religious beliefs, they did not accept that this applied to the entire five-week period he claimed. The Tribunal concluded that the motive for wanting such a lengthy period of time off work related to his family arrangements rather than his religious beliefs.

Mr Gareddu then appealed that decision to the Employment Appeal Tribunal. In particular, he argued that the fact that he wished to attend Sardinia to be with his family, as well as to attend religious festivals, did not undermine the religious element of his request. The EAT did not disagree with that in principle, but the important issue, in this case, was that Mr Gareddu could not justify the length of his stay with reference to attendance at religious festivals, and that was crucial. As the EAT noted, if a churchgoing family man asserted that he needed the whole weekend off work to attend church with his family, but in reality he only attended Church on Sunday and went shopping with his family on Saturday, the fact that his assertion was partly true (in relation to his Sunday attendance) did not prevent a tribunal from determining whether his asserted requirement for a whole weekend off work in order to manifest his religious belief was a genuine one.

This case highlights the importance of ensuring that requests made by employees with respect to religious observances are focused specifically on what is required, without additions made for other reasons. Whilst employers are obliged to consider such requests, if they cannot be justified in full, an employer will be entitled to refuse them.

Safia Tharoo, Barrister, 42 Bedford Row, London

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