Indirect Workplace Discrimination

In a recent case the Employment Appeals Tribunal upheld a decision to reject a claim for indirect workplace decimation on religious grounds where an employer refused five consecutive weeks’ holiday for the attendance at a series of religious festivals. The claim was based on the assertion that the employer’s policy of only allowing three consecutive weeks’ holiday meant that he was indirectly discriminated against on the basis of his religion.

Indirect religious discrimination occurs where an employer applies a provision, criterion or practice which puts persons of a particular religion or belief at a particular disadvantage when compared to others.

However, a claim will not succeed where the employer must is able to justify the provision, criterion or practice by showing it to be a proportionate means of achieving a legitimate aim.

In the case the employee was a practicing Roman Catholic and was entitled to 38 days’ holiday per year. Between 2009 and 2013 his employer permitted him five consecutive weeks’ holiday in the summer. In March 2013 he was told by a new manager that he would not be able to take five consecutive weeks’ holiday during the next year.

The employee claimed that as part of his religious belief, he attended ancient religious festivals in Sardinia with his family. He brought a claim for unlawful indirect religious discrimination when his holiday request was refused.

His claim was dismissed in the Employment Tribunal, which found that the employee had not always attended festivals whilst he was away. The decision was upheld with the Employment Appeal Tribunal finding that the real reason for wanting to take holiday for lengthy periods was a desire to be with his family and not solely to attend the religious festivals.

Arguably, even if the employee had genuinely wanted to have five weeks’ holiday for solely religious reasons, the employer may have been able to justify their practice due to economic factors and the pressure five weeks’ consecutive holiday in the summer would place on the organisation. In cases such as this, it is important that the business comprehensively considers requests for annual leave and demonstrates sounds business reasoning in the case of a rejection of a request.