The EAT has held that an employer's refusal to grant an employee five consecutive weeks' annual leave in order to participate in religious festivals did not amount to indirect religious discrimination (Gareddu v London Underground Ltd, EAT).
The Equality Act 2010 prevents discrimination against employees in the workplace on a number of grounds, known as "protected characteristics". These include the ground of religion or belief.
An employer may indirectly discriminate against an employee on the grounds of religion or belief where an apparently neutral "provision, criterion or practice" (PCP) puts persons with a protected characteristic at a particular disadvantage, and puts the employee themselves at that disadvantage. If the employer can't justify a discriminatory PCP, then the employee will succeed in their claim of indirect discrimination and will be able to seek uncapped compensation.
Where employees seek protection based on their religious belief, the belief must be genuinely held. The Court or Tribunal may establish this as a question of fact.
Mr Gareddu (the Claimant) was a practising Roman Catholic from Sardinia who lived in the UK and worked for London Underground (LU). He was entitled to 38 days' holiday (including bank holidays) each year.
For several years, LU permitted him to take 5 consecutive weeks' holiday around August to return to Sardinia where he attended a series of religious festivals with his family. However, in 2013, he was told by a new manager that this arrangement could not continue, as it was unfair to the other employees in his small team. As he had already booked his holiday for 2014, he was permitted to take 5 consecutive weeks during that summer, on the basis that it was the last time that he would be able to take more than 15 consecutive days (3 weeks) over the summer school holiday period. His application for annual leave of 5 weeks over the summer school holiday period in 2015 was refused by LU.
The Claimant brought a grievance claiming that taking 5 consecutive weeks over the summer was part of his religious belief to attend and participate with his family in ancient religious festivals held in Sardinia. When his grievance was rejected by LU, he brought a claim in the Employment Tribunal (ET) alleging that the refusal of his holiday request was unlawful indirect religious discrimination. He claimed that, by only allowing a maximum of 3 consecutive weeks of annual leave, LU had applied a PCP which put him at a particular disadvantage in that it prevented him from manifesting his religion by attending the religious festivals.
Employment Tribunal decision
Although the Claimant's witness evidence suggested that he attended up to 17 or 18 religious festivals each year with deep religious significance to him, the ET found that the Claimant had not attended any festivals in 2014 due to injury, and only 9 festivals in 2013.
The ET also found that the Claimant's decision of which religious festivals to attend was a matter of family consultation. As a result, the ET was not satisfied that the Claimant's attendance at a series of different religious festivals for 5 weeks around August was a manifestation of belief that was "intimately linked" to his religious belief. The ET concluded that the asserted religious belief was not genuine and had not been made in good faith. The ET did not consider it necessary to go on to reach any findings with regard to the PCP, group disadvantage or justification.
The Claimant appealed to the EAT. The Claimant's ground of appeal were that the ET:
- Failed in their approach to determining a claim of indirect discrimination by not making findings as to the PCP, group disadvantage and justification.
- Imposed an unwarranted additional requirement that religion be the sole or primary motivation for the Claimant's manifestation in order for it to benefit for protection under the relevant law.
- Considered an irrelevant factor (the Claimant's desire to worship collectively with his family) in determining whether or not the Claimant acted in good faith.
- Had based their conclusions upon an incorrect understanding of the Claimant's witness statement.
The EAT dismissed the appeal.
In relation to ground 1 of the Claimant's appeal, the EAT found that ET's failure to make any findings as to the PCP, group disadvantage and justification was unfortunate, but not an error of law. Given the ET's findings of lack of good faith and genuineness of the manifestation of the belief, it was not necessary to deal with these aspects.
In relation to grounds 2 and 3 of the Claimant's appeal, the EAT found that the ET had acted properly in limiting its enquiry to determining whether or not the Claimant's particular manifestation of belief (attending a series of festivals over a 5-week period) was genuine, finding that the real reason was that the Claimant wanted to be with his family. In particular, it was not disputed that attending festivals in Sardina was a manifestation of belief both for the Claimant and for others, but this did not inevitably mean that attendance for a 5-week period was also a genuine manifestation.
The EAT gave an example of a churchgoing man who asserts that he requires a whole weekend off work to attend church with his family, but, in truth, only attends church on Sunday and goes shopping with his family on Saturday. The EAT pointed out that the fact his assertion is partly true (in relation to his Sunday attendance) does not prevent a Tribunal from determining whether his asserted requirement for a whole weekend off work in order to manifest his religious belief is a genuine one.
Finally, in relation to ground 4 of the Claimant's appeal, the EAT concluded that the ET had acted reasonably and had not been perverse in finding that the Claimant's witness evidence about his attendance at festivals was untrue and incorrect.
Although attending religious festivals in Sardinia was a manifestation of the Claimant's religious belief, the ET and EAT both found that it was not the real reason for his request for 5 weeks' holiday. Therefore, although the Claimant's religious belief was genuine, his claim did not succeed because the ET found that the particular manifestation of religious belief contended for (i.e. the requirement for the 5 weeks) was not genuine.
Even if the Claimant's request had been a genuine request relating to his religion, LU may have been able to justify their refusal on the basis that limiting employees' holiday to 3 consecutive weeks at a time was a proportionate means of achieving a legitimate aim.
Requests for time off for religious purposes should always be handled delicately. However, this case is useful confirmation that requests do not necessarily need to be granted if there is evidence to indicate that the religious belief may not be the genuine grounds for the leave. Employers should keep an open mind, and, in the event that there are doubts about the validity of any the reasons given, be prepared to investigate and listen fully to what the employee has to say before coming to any conclusions.