By Aleksandra Traczyk, Associate at Winckworth Sherwood
There are many different religious observances and festivals celebrated in the UK. These include (in no particular order):
the Christian festivals of Easter and Christmas (normally around March or April and late December respectively)
the Islamic festivals of Ramadan and Eid al-Fitr (generally around May/June)
the Jewish festivals of Pesach and Hannukah (generally around March or April and late November respectively) and others;
the Buddhist festival of Vesak (the full moon in May); and
the Hindu festival of Diwali (generally early November).
Employers will be familiar with the issues that religious observance can give rise to in the workplace including requests for time off and fasting requirements.
This can be a tricky area to navigate, particularly when there are different requirements between employees as well as business requirements. The Equality Act 2010 protects individuals from discrimination on the grounds of religion or belief.
Policies and practices
There are many different types of discrimination, but the most real risk employers can sleepwalk into is of indirectly discriminating against an employee. Indirect discrimination is when employer’s practices, policies or procedures disadvantage people who possess a particular protected characteristic (such as religion), unless the employer can show objective justification.
For example, scheduling important meetings on Friday evenings, which a Jewish employee observing Sabbath could not attend are likely to be indirectly discriminatory unless the employer can give legitimate objective justification for scheduling a meeting at that time.
Requests for time off
None but the Christian festivals of Easter and Christmas are public holidays in the UK. Employers may therefore receive requests from non-Christian employees for time off during non-Christian festivals.
There is no automatic obligation to give employees time for religious holidays or festivals. Employees should therefore request time off in the usual way, namely by giving notice of at least twice the length of the requested holiday.
However, employers should be aware that refusing a request by an employee to take time off for religious reasons can amount to indirect discrimination unless they can show objective justification. All requests should therefore be considered on an individual basis.
Employers should keep in mind that each festival will be different. In the case of Ramadan, the exact date of Eid-al-Fitr is dependent on the sighting of the moon, so it cannot be known precisely in advance (and so it will not be known until a very late stage that it will fall on one of two consecutive days). Employers will therefore need to be prepared to receive requests for time off at short notice. Refusing to consider requests because they have been made at short notice could amount to indirect discrimination.
It may not be possible to accommodate all requests and the employer should aways adopt a fair approach to granting leave which may include considering what cover might be required during a certain period, avoiding a first come-first-served allocation, and considering those who have worked over that religious festival (e.g., Diwali) in the previous year.
Requests for flexibility
Employees may also appreciate flexibility around religious observance. All qualifying employees can make a request for flexible working to accommodate observance of their religious beliefs; although often employers will be better served by agreeing more informal and flexible arrangements, to support the employee.
Muslim employees may appreciate, for example, if during Ramadan they could split their lunchbreak into smaller breaks to allow them to pray, since they are not able to consume food and drink during the day in any event (unless exempt).
They may also appreciate earlier start and finish times or permission to work from home, to help with their fasting. In many cases it will be in the employer’s best interest to agree to such arrangements since employee’s energy and concentration levels are likely to be higher earlier in the day and when they have not had to commute into work (where this is possible
Employers must also avoid penalising staff whose productivity may be impacted by the effects of fasting. In one case, an employment tribunal held that critical comments made to an employee about their reduced productivity due to fasting amounted to religious discrimination and religion-related harassment.
Employers therefore need to be aware of the different types of discrimination and train their employees to make sure it does not occur in the workplace. It may be helpful to make employees aware that they can discuss their religion or belief with their manager and/or HR department, so that they are aware when considering requests for time off and other requirements.
Employers will have a defence to an indirect discrimination claim if they can show objective justification, namely that any practices, policies, or procedures were a proportionate means of achieving a legitimate aim (e.g., that a meeting scheduled on Friday evening which a Jewish employee observing Sabbath could not attend was for vital business reasons and could not have been scheduled at any other time). If employers get this right, discrimination claims may be avoided in the first place.