Have faith, will travel

An estimated four million people converged on St Peter’s Square last month to pay their respects to the late Pope. Among the crowd of pilgrims must have been a considerable number of UK employees. Did they take annual leave to travel to Rome? Was it paid or authorised? Did any of them ask for leave on religious grounds? Did businesses with a strong Catholic ethos suffer a loss of productivity as devout employees set off for the Vatican?

Since 2 December 2003 and the introduction of the Employment Equality (Religion or Belief) Regulations 2003, it has been unlawful to discriminate against employees on the grounds of their religion or belief.

As with other forms of discrimination in the UK, this means it is now unlawful to discriminate against someone:

  • directly, by treating them less favourably on the grounds of their religion or belief
  • indirectly, by applying a provision, criterion or practice which disadvantages people of a particular religion or belief without a good business reason by harassing them
  • by victimising them
  • after the employment relationship has come to an end.

One concern raised by businesses about the regulations was the possibility that they could face numerous requests for leave from employees who wished to observe religious festivals at times other than the Christian festivals of Christmas and Easter. So far, there is little evidence to suggest this has been a problem, but there has been at least one tribunal decision where the issue of religious discrimination has arisen.

In the case of Khan v NIC Hygiene, the employer was obliged to pay 10,000 compensation for dismissing a Muslim employee who took extended leave to travel to Mecca on the Haj, the fifth of the established pillars of Islam.

According to commentators, this case should not be considered a precedent for future cases. The employment tribunal’s decision turned more on the fact that Khan had been told by his immediate line manager that if he did not hear to the contrary, he should assume his request for four weeks’ annual leave, plus an additional week of unpaid leave, had been granted.

When Khan did not hear from his employer he duly took the time off, but on his return he was sacked for unauthorised absence. Even if the issue of religious discrimination had not been raised, the employer, on that occasion, acted unreasonably – since its response to his alleged breach of procedure was clearly outside the reasonable range of responses.

However, the case has reminded employers that the regulations protect employees who are treated less favourably as a result of their religion. Recent events in Rome may well have tested the procedures in place in some organisations.

Any requests

So, how did those UK employees all get time off to go to Rome?

Some employees may simply have requested leave, in accordance with the holiday procedures in place at their organisation, without mentioning what it was for. Given the speed with which the Pope’s health declined, employees would no doubt have made these requests at short notice.

Most employers require staff to give as much notice as possible of holiday requests to ensure the business will not be unduly affected by the absence. Indeed, under the Working Time Regulations, workers can be required to give notice of double the amount of time that they wish to take off – for example, two weeks’ notice of a one-week holiday.

But how should employers react when several employees all want holiday, at short notice, at the same time?

It may not be possible to grant leave to all of them, and employers will need to tread carefully in deciding whose request should be granted. If there is any form of collective agreement in place, this may provide a method for dealing with such an eventuality. However, this issue may not have arisen until now, so it is possible that no such arrangement exists. Where requests are made at the last minute, a ‘first come, first served’ policy is probably as good as any.

However, matters could become complicated where some employees specifically request time off for religious reasons. How do employers balance the competing requests, taking into account the concerns that have been raised by the Khan case?

The Acas guide, Religion and belief in the workplace, sets out details of recognised religious festivals for the main religions, but the Christianity section offers no guidance on how employers should respond to requests for leave following the death of a Pope.

In practice, employers need to be fair when considering requests from all employees. They should be aware of the difficulty of refusing a request outright on the basis of an employee’s religious belief, since that could amount to direct discrimination.

Similarly, refusing leave on the basis that the business will be affected by the employee’s absence could amount to indirect discrimination if the refusal cannot be justified.

Employers should take into account the employee’s religious beliefs, and consider how, if at all, the request could be accommodated – ideally by consulting with the employees affected. In circumstances such as these, employers should be aware of the need for sensitivity, and take into account the fact that such events may be rare and unusual in terms of the impact and strength of feeling generated.

Employers are also entitled to take into account the needs of the business, and the needs of the other employees. It may well be that the employer can accommodate only a few requests for leave at short notice, but no more.

Provided it can justify refusing the later requests, by reference to business reasons – for example, the critical role played by the member of staff concerned, the impact on customer service, and on other employees who might otherwise be stretched to cover the workload – employers should be able to defend any claims of religious discrimination from those whose requests were turned down.

Illegal absence

How should an employer deal with employees, who, if despite their holiday requests being refused, went to Rome anyway, or someone who took off for Rome without making a request at all? Does the disciplinary procedure need to take into account the reason for the employee’s absence?

While it may be relevant to the issue of mitigation, the fact that an employee took unauthorised absence to meet a religious need should not affect the way in which their unauthorised absence is handled.

The normal disciplinary procedures should apply and the appropriate sanction imposed if they are found to have breached company rules. To the extent that the employee’s religious belief is relied on to explain their behaviour, an employer will need to be sensitive, but potentially firm.

The regulations were introduced to protect those who were genuinely suffering discrimination in the workplace, but they are not an invitation for employees to ignore rules and procedures as they see fit. Employers should be able to justify any disciplinary action by reference to the need for clear practices to be followed by all employees applying for holiday leave.

Events in Rome, as well as elsewhere in the world, combine to ensure that the role of religion in everyday life remains a topical issue. Dealing with it in the workplace in a fair and respectful way may set the standard for greater co-operation and goodwill on other levels.

Your business holiday policy may not change the world, but your employees could well go on to do so.

Marian Bloodworth, lawyer, employment and pensions practice, Lovells

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