Discrimination: A pilgrim’s progress

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 unpaid leave, this may put employees of particular religions at a disadvantage and therefore be indirectly discriminatory. However, employers can raise the defence of justification to indirect discrimination. The employer needs to show the discrimination was justified by a legitimate business need which could not be met by other reasonable means. If Khan’s request for leave had been denied, it would have been difficult to justify given that his line manager clearly did not object to his absence and could, presumably, cover his work in some other way.

The same principle would apply to any holiday policy which had indirectly discriminatory consequences. Thus, an employer could require a Christian employee to work on Christmas Day, provided the company could show this was justified by the needs of the business. If there are other means by which these needs could be met, the employer should explore them. For example, if shifts could be adjusted or work managed differently, the employer would not be able to justify the discrimination against the particular employee. Where the employee is one of a category of workers who could perform the same work, it is very unlikely that the discrimination could be justified. However where the skills, experience or knowledge of the particular employee are needed, then the discrimination could be justified. Similarly, the policy of having a Christmas shutdown is indirectly discriminatory as it would be to the disadvantage of non-Christians. However, such a shutdown would be justified in a business where there is very little or nothing to do over the Christmas period.

This case is a powerful reminder to employers that they are obliged not to discriminate on grounds of religion or belief. However, the case is not the watershed some have suggested. The defence of justification to indirect discrimination claims still exists and it is in this area that further case law will be needed to determine just how far an employer can go before a discriminatory consequence of its policies ceases to be lawful.

Roger Byard is a partner in the employment law group at Cripps Harries Hall

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