Religious discrimination

The problem You are in a very busy pre-Christmas season, and an employee who is also a strictly practising Jew requests to take time off on Friday afternoons to prepare for the Sabbath. You have staff off sick and are at full stretch. Can you refuse? You also require all staff to take Christmas Day and Boxing Day as holiday. Are you discriminating against Hindu employees who may want to work on these days and wish to take their holiday during Diwali instead?

The Law
Under the Employment Equality (Religion or Belief) Regulations 2003 it's unlawful to discriminate against employees on the grounds of their religion or similar belief. An employer must not treat an employee less favourably than they treat or would treat another employee on the grounds of their religion (or similar belief). This is direct discrimination.

An employer can also be liable, however, for indirect discrimination. This is where the employer has in place a working practice (or other "provision" or "criterion") which applies equally to all staff but puts an employee of a certain religion at a disadvantage. Such a practice can be justified, however, if it's a means of achieving a "legitimate aim". If the employer can show that there's a real business rationale for the practice - eg, health and safety requirements, meeting customer demand or other specific business needs - then a claim for discrimination won't succeed.

Note that the regulations actually cover "workers" and not just "employees", ie, they could potentially cover treatment of agency workers and casual workers as well as regular staff.

Expert Advice
Although the restaurant's practice of not permitting Friday afternoons off in the run-up to Christmas applies to all staff, it may also disadvantage employees of the Jewish faith who adhere strictly to the Sabbath and may need to leave work earlier than usual on a Friday. By refusing the request, the restaurant may be indirectly discriminating against the employee.

It's a question, therefore, of whether the restaurant can justify the practice in the build-up to Christmas on genuine grounds. This is likely in this scenario as there's increased customer demand at this time of year, and restaurants are at their busiest, requiring all employees to work their required hours, which could justify its potentially discriminatory practice.

The requirement to take holiday over Christmas is a practice of the restaurant which applies equally to all employees but puts the Hindu staff at a disadvantage and means it has a potentially discriminatory impact on them. Again, therefore, it's a matter of whether or not the practice can be justified as supporting a legitimate business aim. It's likely that trade would be negligible at this time and so opening would be contrary to business need and this is likely to be sufficient justification for a requirement for all staff to take their holiday then.

It's worth noting that the Working Time Regulations 1998 entitle employers to require staff to take holiday at certain times.

Check List

• Consider requests for time off carefully and explore fully the reason for the request. Does it meet a genuine need to attend at a religious occasion?
• Consider any request from all employees in the same manner.
• Consider whether any refusal could also amount to discrimination. If you're refusing a request, be clear about your reasons and ensure you're comfortable they're genuine. In a recent IRS survey, a third of organisations said they made provision for members of faiths other than Christians to mark special religious festivals.

Beware!
Financial awards in discrimination claims can be high as there's no ceiling on compensation. Discrimination claims are also bad for business.

Contact
Polly Botsford
Charles Russell
Tel: 020 7203 5099
E-mail:polly.botsford@ charlesrussell.co.uk