Genuine religious beliefs requiring protection?
In this case the interesting question arose with regards to an employee’s true motivation for requiring an extended period of annual leave off over the school summer holidays.
Gareddu v London Underground Ltd
Section 10 of the Equality Act 2010 states:
(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.
(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
(3) In relation to the protected characteristic of religion or belief—
(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;
(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.
Various cases and decisions in European and UK Courts have ruled that beliefs are and can be diverse and protection afforded to those holding religious or philosophical beliefs is broad, individualised and subjective.
Section 19 of the Equality Act 2010 prevents indirect discrimination, namely where an employer has a provision, criterion or practice which puts an employee at a particular disadvantage because of a protected characteristic. Religion and belief are protected characteristics.
Mr Gareddu is employed by London Underground Limited as a Quality Engineer and he has been employed since 1990. Mr Gareddu is from Sardinia in Italy and is a practising Roman Catholic. Each year Mr Gareddu would travel to Sardinia with his brothers to spend time with their mother and to attend religious festivals.
Between 2009 and 2013 Mr Gareddu took 5 weeks’ continuous annual leave during the summer to travel to Sardinia. His annual leave had been permitted by London Underground during this time.
In early 2013 Mr Gareddu was appointed with a new Line Manager, Mr Cross, who informed Mr Gareddu that he would not be permitted to take 5 weeks’ consecutive leave at the same time in future and that it was unlikely he would be granted more than 15 days continuous leave during the school summer holiday period.
Despite this warning from Mr Cross, Mr Gareddu was permitted to take his 5-week holiday in 2013 and 2014 as previously agreed but in 2015 his request was refused.
Mr Gareddu made a claim in the Employment Tribunal on the basis that it was part of his religious belief that he attends the ancient religious festivals in Sardinia and that his employer’s policy was indirect religious discrimination.
At the Employment Tribunal it was decided that ‘the “asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September” was not made in good faith’. It was accepted that participation in religious festivals might constitute a manifestation of religious belief, but it was it was Mr Gareddu’s assertion of the specific 5-week period to attend that the Tribunal did not agree with. Mr Gareddu appealed.
The Employment Appeal Tribunal agreed with the Employment Tribunal’s original decision and refused Mr Gareddu’s appeal.
At the Employment Tribunal they had decided that Mr Gareddu’s evidence about the number of religious festivals and reasoning for attending was inconsistent and this contributed to their decision that the true or genuine reason for Mr Gareddu wanting a 5-week period of annual leave was not his religious beliefs or their manifestation but his wish to be with his family.
Whilst attendance at festivals in Sardinia could be a genuine manifestation of religion or religious belief in Mr Gareddu’s case this was not the reason and therefore there could be no discrimination for the decision to prevent him taking 5 weeks’ consecutive leave.
Points to note
When I read the facts of this case I had a number of questions about the employer’s behaviour, unrelated to the argument of discrimination, but just about good employee relations and HR management. As you will have read, in this scenario a long serving employee who, for his own personal and clearly important reasons to him, would take 5 weeks leave in August each year and did so for 5 years in a row, and when a new manager arrived this was stopped.
I would like to think that the manager had very good operational reasons for the decision to prevent Mr Gareddu’s leave. But even with the most important operational reasons did this situation have to end this way?
I often advise both employers and employees in situations where a new manager or employer makes a decision that has huge impacts on employees just for the sake of it, or because it is not the norm.
Whilst I can see that there could be negative impacts of having an employee off for 5 weeks in a row in the summer I can also see benefits.
You have an employee whose holiday is predictable and therefore easy to plan for, and who is likely to be more engaged and happier at work because they get to spend quality time with family exercising their religious beliefs.
As I say there is much we do not know about the employee or the operation of the job role he undertook but if I were advising an employer who was on the verge of making a similar such decision I would advise to really question the motive and operational reasons for the decision, and ensure all options have been explored before implementing a decision that could have major impacts on staff morale, productivity and could end in litigation.
Action to take
1) In the event that you implement a new decision or policy ensure that you take a measured approach and that it will not have adverse consequences for a particular group or persons;
2) Discrimination can be a difficult issue to manage with potential financial and reputational issues, and therefore to ensure you get things rights seek advice before making decisions or taking action;
3) If you have any concerns about your own situation contact me email@example.com or 023 8098 2006, 01983 897003.
Employment Appeal Tribunal – Gareddu v London Underground Ltd
You can read the full judgement here
I would be really interested to hear your thoughts on this issue, please leave your comments or questions below.