When regulations came into force on 2 December 2003 making it unlawful for employers to discriminate on grounds of religion or belief, one major concern was the treatment of religious holidays. Although Christmas and Easter are public holidays, there are many businesses where employees are contractually required to work over these times. Would this still be allowed? Employees of other religions may find it objectionable that their employer shuts down over the Christmas period and requires them to take annual leave which they would rather keep for their own religious holidays. Would such a seasonal shutdown still be permitted?
The guidance from Acas suggested the key question was whether the requirement could be justified in the light of the needs of the business. This has given employers some comfort. However, a recent case has raised the issue again and employers are concerned about the lawfulness of denying requests for religious holiday.
Mohammed Khan, a bus cleaner for NIC Hygiene in Bradford, was a Muslim who wanted to take six weeks leave to go on a Hajj to Mecca. His request to take 25 days holiday plus a further week of unpaid leave was not granted by his employer, who did not respond to his verbal or written request. Khan's line manager told him that if he received no response, he should go anyway. Khan acted on this and went on his pilgrimage. On his return, he was dismissed for gross misconduct for his unauthorised absence. Khan succeeded in his claim that the dismissal was unfair and was unlawful discrimination on grounds of his religion.
Lack of response
Immediate reaction to the case has seen it as requiring employers to permit requests for religious holidays, but in fact this issue is not dealt with by this case. The employer did not refuse Khan his holiday request; it simply did not respond. The only response given was by the line manager, who supported Khan's request and encouraged him to take the holiday. Categorising this as an 'unauthorised' absence, and taking disciplinary action accordingly, was therefore highly questionable. Even without any linkage to religion, Khan's dismissal would have been likely to be outside the band of reasonable responses open to the employer. Indeed, from the case reports currently available, it is unclear precisely what role discrimination played in the tribunal's decision.
Where a policy exists preventing long holidays or restricting the availability of