Flexible working and religious discrimination

An employee has asked whether he can have Friday afternoons off work during the winter months as it is the Sabbath in his religion. Would this be a flexible work application?

There are specific rights to request flexible working arrangements in respect of hours, time and location of work. However, these only apply where the change helps the employee care for a young child, although this will be extended in April to carers of adults.

The request here is connected to the employee’s religious beliefs and the fact that the working hours infringe on the Sabbath.

The Employment Equality (Religion or Belief) Regulations 2003 make it unlawful for employers to discriminate on the grounds of religion in the employment process. As these provisions extend to setting terms and conditions relating to hours of work, the employee may complain that the requirement to work Friday afternoons is a “neutral provision, criterion or practice” that puts persons of his particular religion at a disadvantage. This would amount to indirect discrimination unless you could show that the requirement was justified, which will depend on the nature of the job.

When assessing justification, consider how big an impact the absence of this employee on a Friday afternoon will have on the business. Can the work be covered by other employees? Is a Friday afternoon a particularly busy period? Can the work be done at another time?

Only by giving careful consideration to the work requirements will you be in a position to show justification and defend a claim of discrimination should you refuse the employee’s request.

By Michael Ball, employment partner, Halliwells

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