The Easter holiday season is almost upon us, and with it comes the usual challenges for employers balancing the needs of the business with the rights of employees to take leave.
What the law says
Workers have a right to a minimum of 5.6 weeks' paid annual leave under the Working Time Regulations 1998. This amounts to 28 days for a full time worker, pro-rata for part-time workers reflecting the number of days they work each week.
It is of course possible for an employer to allow their workers more than the statutory minimum period of leave each year and this should be clearly stated in the employment contract.
There is no statutory right for workers to take time off (paid or otherwise) on any bank or public holiday. Whether a worker can be required to work or not on a bank or public holiday is entirely a matter for their contract.
In many sectors working on such holidays is a commercial or operational necessity. Other employers will close their workplaces on such days and therefore require workers to take leave on public holidays and such days will count towards their statutory minimum entitlement.
Bank Holidays and part-time workers
The position of part-time workers in relation to public holidays is not particularly clear. Some employers only give the benefit of bank or public holidays if the holiday in question falls on a day on which the worker would otherwise normally be at work. However, this may be in breach of the Part- Time Workers Regulations 2000, because some part-time workers (generally those who do not normally work on Mondays, or those whose working days are variable) could be treated less favourably than comparable full-time workers.
It is generally thought that the simplest way to achieve equality is to give part-time workers a pro rata entitlement to public holidays, regardless of whether they normally work on days on which those holidays fall.
Holidays and discrimination
While the majority of Christian religious holidays, like Easter, are provided for as bank or public holidays in the UK there is no equivalent provision for non-Christian festivals. This can mean that employers have to balance numerous requests for holiday during times when the business is fully operational. Where there are a large number of employees who want to take the same time off it may not be possible to accommodate everyone due to the needs of the business.
Employers will need to act reasonably in dealing with holiday requests and establish a fair system for granting leave that meets the needs of the business but does not put employees of any particular religion or belief (or those who do not hold any such beliefs) at a disadvantage as this risks claims of discrimination on grounds of religion and belief. What is reasonable will depend on the size of the employer, its resources and the number of employees requesting leave at the same time.
A similar risk applies in respect of indirect sex discrimination and requests for time off to look after children during school holidays. Tribunals accept that more women than men have caring responsibilities and so an inflexible policy that vetoed annual leave at certain times which coincided with school holidays could be open to challenge if a worker was unable to find alternative childcare arrangements in place.
Genuineness of request
The risk of a successful religious discrimination claim will only apply where the belief is genuinely held and manifestation of that belief is the genuine reason for the holiday request. This point was illustrated in the recent case of Garreddu v London Underground Ltd.
Mr Gareddu, a practising Roman Catholic, had been permitted to take five consecutive weeks' holiday in the summer to return to his native Sardinia, reoccurring each summer for a number of years. However, a new manager told him that he would not be allowed to take five weeks' leave during the next year, and that it was unlikely that he would be granted more than 15 continuous working days of leave during the summer holiday period. His request for a similarly extended period the following year was declined and he was told that he could only take a maximum of three weeks' holiday.
Mr Gareddu claimed that it was part of his religious belief that in or around August each year, he attended and participated with his family in ancient religious festivals held in Sardinia. He challenged the refusal of his holiday request and brought a claim alleging that this was unlawful indirect religious discrimination. He asserted that only allowing three consecutive weeks of annual leave indirectly discriminated against him on the basis that it prevented him from manifesting his religion by attending the religious festivals.
His claim was ultimately unsuccessful. An employment tribunal found that Mr Gareddu had not actually attended a series of festivals to the same saints each year, nor had he attended the same number of festivals each year. The decision of which religious festivals to attend was in fact entirely dependent on the views of Mr Gareddu's family and friends, and therefore his asserted religious belief was not genuine and had not been made in good faith. The tribunal concluded that there was no religious requirement for Mr Gareddu to take five consecutive weeks off in August each year to attend particular religious festivals; the real reason for wanting to take five weeks' holiday was in fact the desire to be with his family.
Where requests are made that are linked to time off to celebrate a religious festival employers need to ensure that full consideration is given to the practicability of accommodating the request. It should not be dismissed out of hand simply because it is a busy period or others already have holiday booked.
If after consideration, an employer needs to refuse a request it must be able to justify this by reference to genuine business reasons unrelated to the employee's religion or belief. It should also handle the situation sensitively by seeking to reach a compromise with the individual where possible, for example, by putting the employee to the top of the queue for next year.