Over a month off in Sardinia in August each year with your family sounds the way to go, doesn’t it? Something you could really look forward to, but would probably not really expect your employer to grant you as a matter of right, I suspect.

One Mr Gareddu disagreed. He claimed that those five weeks were required for the observances of his Sardinian Catholicism, and therefore that the refusal of his employer, London Underground Limited, to grant them amounted to indirect religious discrimination. Specifically, he said, there were numerous religious festivals taking place in Sardinia over that period which he (a) had to; and (b) always did, attend. Extracting details of those festivals from Mr Gareddu was not as easy as one might have hoped for someone whose case depended on them, but eventually he produced a list of 17 events over that window which he said explained why religious observance required him to be in Sardinia with his family for an extended period at the height of the holiday season.

The Employment Tribunal manfully supressed the flaring scepticism it must have felt and reminded itself very firmly that it is not its job to determine what is and is not a necessary manifestation of a particular faith. Once it found that a particular view on the part of the employee as to what acts his religion required was genuine, the only question was whether the employer was justified in stopping them. The obvious safeguard is that the barmier the observance contended for (this is para-phrased somewhat, just to be clear), the more easily the employer can establish justification.

Almost all religious accommodation cases which fail do so on the justification question, but here the Employment Tribunal’s decision did not deal with it at all. The Tribunal preferred to look first at whether Mr Gareddu reasonably believed that taking those five weeks was a commandment binding upon him. Very conscious of the risk of superimposing its views on his, the Tribunal trod carefully through his evidence and noted in particular that Mr Gareddu had ultimately admitted that he didn’t in fact go to all 17 festivals every year, and indeed had not been to any at all since 2013. He said that he had broken his leg in Sardinia twice in successive years since then, hence not going to any actual festivals, and that which of the festivals he actually went to was in fact decided in consultation with his family in part to suit their convenience, and not as a matter of Catholic obligation.

That allowed the Tribunal to reach the conclusion it so clearly wanted, i.e. that while you could certainly make attendance at a particular festival into a religious manifestation (hence viable applications for time off for Eid, Yom Kippur or Ascension Day, etc.), you could not say the same of a shifting list of patchily-attended events partially determined by your family. Therefore it could not be said that the five weeks’ absence claimed by Mr Gareddu as necessary to his belief, really was. As a result, the Tribunal found that he did not genuinely believe it to be a religious requirement to take that time off and so his claim failed without getting anywhere near the justification point. The EAT could fault none of it on appeal.

Lessons for employers

  • This is a sensible decision in its outcome but perhaps understates the risk to the employer of visibly doubting or challenging the good faith of an employee’s claimed religious belief. Unless you are on very solid ground indeed, any expression of scepticism should be as limited as possible or it could quickly stray into mockery and harassment. As a rule, justification will be the safer defence.
  • However, there is nothing to be lost from neutrally-phrased questions to the employee as to the specifics of what he says his observance requires. It is after all those specifics which the employer is being asked to accommodate. Mr Gareddu’s evasiveness in relation to the precise list of festivals he had mind counted heavily in the Employment Tribunal’s conclusion that it was not put forward in good faith.
  • Perhaps foolishly, Mr Gareddu did not suggest that if five weeks off were not ok, there was a minimum core of festivals he had to attend which would have required a shorter period, being easier for LUL to grant (and no doubt much less irritating to his colleagues into the bargain). However, if your employee proposes a particular accommodation which you cannot meet, it may still benefit you to be seen to explore with him whether there is some compromise measure which you could. If he accepts then you avoid any claim, and if he doesn’t, then you have greatly reinforced your own justification argument.