Welcome back to your weekly case law update. Last week we had our monthly newsletter, which included a forecast for 2017, this week we bring you a case about religion and belief discrimination. This week’s case is an EAT case that we had previously covered at Tribunal level.
For the uninitiated, Section 10 of the Equality Act 2010 defines Religion and Belief Discrimination to include:
– Any religion, or lack of religion
– Any belief, or lack of belief
Like other protected characteristics, those who are perceived to belong to a religion or hold certain views, and, those who are associated (by marriage or otherwise) with people of a particular religion or belief, are also protected.
A religion is defined as a clear structure and belief system. This includes sects of larger religions such as Methodist Christians or Sunni Muslims but also smaller religions such as Paganism, Scientology or Rastafarianism.
A belief must be genuinely held and more than an opinion. It must be cogent, serious and apply to an important aspect of human life or behaviour. This is not restricted to religious beliefs but philosophical ones too. Humanism, atheism and environmentalism would all qualify.
Our previous updates have found, for the purposes of the Equality Act, that left-wing views and a belief that public money was being wasted qualified as protected beliefs. However, an extreme belief, such as one race being superior to another, would not qualify as it conflicts with the fundamental rights of others.
Discrimination can be direct – Section 13 of the Act (not employing someone because of their religion), indirect – Section 19 (a policy that inadvertently discriminates against a religious employee), harassment – Section 26 (employees feeling humiliated, offended or degraded because of their religion) and victimisation – Section 27 (where an employee is treated badly after making a complaint of religion or belief discrimination). Like all discrimination claims, there is no cap on the compensatory award.
Therefore, today’s question is:
Can a refusal of a five-week holiday request to attend religious festivals be indirect religion and belief discrimination?
Mr Garredu, the Claimant, was a practising Roman Catholic from Sardinia, Italy. He worked as a Quality Engineer for London Underground Ltd, the Respondent. The Claimant lived and worked in the UK but would return to Sardinia, for the entire month of August, to visit his family and attend religious festivals.
The Claimant had worked for the Respondent for 25 years and had regularly taken five weeks off every summer. However, following a change of management, the Claimant was told that he could no longer take such a long period of leave and that he would be unlikely be allowed to take more than fifteen consecutive days of holiday, which was the Respondent’s normal policy.
The Respondent’s reasoning for this was because the Claimant worked in a small team. Having an employee on holiday for most of the school and summer holidays would not only impact service during one of its busiest seasons but also make it difficult for other members of his team to take any holiday off over summer.
The Claimant raised a grievance about refusal of his five-week holiday and the Respondent rejected his grievance. It stated that requests for such an extended period leave were rare and usually only permitted for once in a lifetime events such as weddings, dream holidays and major religious observances such as the Haj. It also stated that attending these festivals was not a requirement of his faith, merely a personal preference.
The Claimant initiated an indirect disability discrimination claim. Claiming that the policy of not allowing more than fifteen consecutive days’ holiday discriminated against his religion – a Sardinian Roman Catholic.
The ET rejected the claim. Whilst it accepted that attending religious festivals could be a manifestation of a religion, it found that the Claimant asserting his religion required attendance of five weeks of religious festivals in August was not made in good faith. It also agreed with the Respondent’s reasons for rejecting the Claimant’s grievance.
The Claimant appealed and the EAT rejected his appeal. It agreed with the Tribunal and found that attending five-weeks of festivals with his family was not a genuine manifestation of his belief.
The Belief Discrimination takeaway point:
In this case, no. The EAT held that this particular religious observance was not a mandatory requirement of the Claimant’s religion. However, refusing a holiday request to attend an important religious observance – like the pilgrimage to Mecca – could be discriminatory.
This case is an ideal guide to dealing with extended holiday requests for religious reasons.