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Religious Holidays: When Can An Employer Say No?

The laws regarding religious discrimination in the workplace vary from country to country. In the United Kingdom it is unlawful to discriminate against workers because of their religion or belief, or lack thereof. U.K. law prohibits four main types of discrimination in the workplace: direct and indirect discrimination, harassment, and victimization. A recent case explores the subjective elements inherent in indirect religious discrimination claims. Indirect discrimination is where person A discriminates against person B by applying a provision, criterion or practice (PCP) which is discriminatory in relation to B’s religion or belief. A PCP is discriminatory where it is applied equally to those who do and not share the protected characteristic, but puts people who do at a disadvantage which cannot then be justified by the employer as “a proportionate means of achieving a legitimate business aim.”

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In this case the Claimant had for a number of years been permitted to take the 5 consecutive weeks’ holiday he requested, during which time he typically attended a series of 17 religious festivals. However due to the application of a new policy in relation to holiday he was only permitted to take up to 3 consecutive weeks’ holiday in 2015. The Claimant argued this put him at a disadvantage with regard to his religion. The Tribunal noted that in previous years the Claimant had not, in fact, attended all 17 festivals. However, had the Claimant been in the habit of attending all 17 festivals, the employer would then have needed to consider whether it could objectively justify its decision to not allow more than 3 weeks’ consecutive holiday as “a proportionate means of achieving a legitimate aim.”

What the this case reflects is that there is a large subjective element to these types of claims. First: whether or not the individual employee has a religion or belief that is covered by the Equality Act, and second: whether the act they are requesting approval for is a genuine manifestation of that religion or belief. The practical starting point for employers therefore is to consider the request for holiday on a case by case basis in line within the specific operational requirements of the relevant area of their business at that time, irrespective of the underlying reason for the request and any blanket policy on holiday. If the request cannot be granted due to the genuine occupational requirements of the business then that decision is more likely to be justified as a proportionate means of achieving a legitimate aim under U.K. law.

Other countries with workplace discrimination laws will have other tests to apply to determine the legality of workplace mandates and prohibitions that may impact religious beliefs and practices. Seek counsel with your Ally Law labor and employment lawyer to review your workplace policies and procedures to assure they comport with current laws and best practices in your jurisdiction. For more information about Ally Law member firm services and outstanding lawyers, contact us at team@ally-law.com.

Click here for the original article by Emma Sangeelee of Ally Law member Edwin Coe LLP.