Are seasonal shutdowns discriminatory?

With the countdown to Christmas well underway, it is easy to forget that not everyone in the workforce will be celebrating Christmas.

Although 72 per cent of UK citizens describe themselves as Christians, the population is more diverse than ever before. Among other faiths, the largest groups are Muslims, Hindus, Sikhs and Jews, who celebrate a number of different festivals, including the Hindu festival of Diwali and the Muslim festival of Eid ul Fitr.

Since December 2003, it has been illegal to discriminate, in employment and vocational training, on the grounds of religion or belief.

Many workplaces (particularly in the manufacturing sector) operate a holiday system which features seasonal closures when all employees must take their annual leave. Such closures usually take place over the Christmas period and during the summer months to coincide with school holidays.

Operating this type of system is not necessarily discriminatory for employees who are not Christians. However, employers must beware that if seasonal shutdowns mean that non-Christian employees do not have sufficient holiday entitlement remaining to take time off for their own religious festivals, the policy could amount to indirect discrimination.

Importantly, the Regulations do not provide for additional time off for religious observance, but employers are expected to consider and try to accommodate requests where it is reasonable and practicable for the employee to take a holiday and they have sufficient holiday entitlement available.

Employers receiving requests should ensure that they understand what is being requested and why. For example, the dates on which the festival of Eid is celebrated are determined by the lunar calendar, so fall differently each year. Employees may not, therefore, be able to indicate the precise dates which they wish to take as holidays, although these can be planned to within a day or two.

The Advisory, Conciliation and Arbitration Service has produced a reference guide for employers. It contains an appendix featuring some very useful information on commonly practised religions.

Employers should also consult employees and ask them to put forward any ideas which they have for covering their absence. However, if having discussed all the available options, the employer decides that the business will suffer disproportionately if the request for leave is granted; the employer can refuse the request providing that it has been properly considered.

Many employers are concerned that they will be opening the flood-gates by granting one or two requests for leave for a religious festival if there is a high percentage of non-Christian employees who could potentially make similar requests. The concern is that if one request is granted, they must all be granted. This is not the case, because particular circumstances will dictate whether or not it is reasonable to grant holidays.

If an employer is faced with a large number of enquiries and granting all of them would result in critical understaffing levels, the employer is not obliged to do so. Employers should take account of the number of staff it would be reasonable to have absent at one time and consult with employees about ways of managing the absences eg by implementing a rota system, whereby employees take it in turns to be away from work for religious festivals.

Joanne Evans is head of Addleshaw Goddard’s Discrimination Unit and Sally Logan is an associate at the company

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