Rights for time off for religious observance

Allen & Overy’s associate Linda Okeke examines employees’ rights to time off for religious observance

In October 2002, the Government published a consultation document, Equality and Diversity – The Way Ahead, which contains its proposals for the implementation of new European discrimination laws.

The draft Employment Equality (Religion or Belief) Regulations 2003, published alongside the Equality and Diversity consultation, prohibit direct and indirect discrimination on the grounds of religion or belief.

Religious discrimination laws come into force on 2 December 2003, making it unlawful for employers to discriminate directly or indirectly when dealing with requests for time off for religious observance. However, it is important to remember that discrimination on grounds of religion may also amount to unlawful race discrimination, under the Race Relations Act 1976.

What is time off for religious observance?

Employees may require time off to observe a religious festival not covered by current statutory holidays, or for prayers. There is no express right to take time off in these circumstances and employers are not required to grant all requests for leave for religious observance.

However, employers risk liability for direct discrimination by refusing to grant leave if leave is refused because of an employee’s religion. Employers also risk indirect discrimination by having rules that are particularly disadvantageous to members of a particular religion, and which are not objectively justifiable.

What is a religion or belief?

The draft regulations define religion or belief as “any religion, religious belief, or similar philosophical belief”. No further definitions of these terms have been given. However, explanatory notes issued with the regulations state that philosophical or political beliefs are not included unless the belief is similar to a religious belief.

The courts and tribunals, in deciding what is a religion or belief, may consider a number of factors, including:

– Collective worship

– Clear belief system

– Profound belief affecting way of life or view of the world

What are the penalties for non-compliance?

An employee can present a complaint to an employment tribunal that the employer has discriminated on grounds of religion or belief. The tribunal may make a declaration or recommendation, or may order compensation for damages. There is no limit to the amount of compensation that can be awarded.

What does HR need to do?

– Find out what your employees’ requirements are and, if appropriate, set up an advisory body on religion and belief

– Ensure your equal opportunities, leave and all policies cover taking time off for religious purposes

– Ensure managers receive diversity training and apply a uniform and non-discriminatory procedure when dealing with requests to take time off for religious reasons

– Publicise the policy and request procedures for taking time off to managers and employees

– Be aware of religious events and the dates on which they occur

– Consider providing a quiet room for prayers

– Be flexible in accommodating requests for time off for prayers during working hours and consider possibilities for the time being made up through shorter lunch breaks or later working times

Linda Okeke is an associate in international law firm Allen & Overy’s employment, pensions and incentives department.