Legal

Manifesting a religious belief and annual leave

25 Apr 2017 By Maria Krishnan

Maria Krishnan reports on a recent EAT case concerning an employee’s request for a five-week holiday

Employers will soon be dealing with a flurry of holiday requests with employees inevitably wanting to spend a week or two sunbathing rather than answering emails.

In Gareddu v London Underground Ltd, the Employment Appeal Tribunal (EAT) assessed whether London Underground should have allowed a request made by its employee, Mr Gareddu, for five weeks off during the summer holidays to attend religious festivals.

Mr Gareddu is a practising Roman Catholic of Sardinian origin. According to Mr Gareddu, from 27 July to 2 September, Sardinians hold some 38 festivals honouring various Christian saints.

During the years 2009-13 Mr Garredu took five consecutive weeks’ annual leave (from 27 July to 2 September) to attend such festivities. He estimated that he would attend 17 festivals in respect of those saints with whom he felt a particular affinity.

In 2014, Mr Gareddu’s line manager changed. His new line manager informed him that in future he would only be allowed to take a maximum of three weeks' consecutive leave. While this would be a generous amount by most standards, it meant Mr Gareddu could not spend five consecutive weeks attending religious festivals in Sardinia as he had done in previous years.

Mr Gareddu claimed taking a five-week period of leave to attend religious festivals was a manifestation of his Roman Catholic religious belief. He asserted that the policy of Transport for London (the local government body responsible for London Underground) of allowing no more than three weeks holiday to be taken at any one time was indirectly discriminatory on religious grounds because it prevented him from expressing his religious beliefs by attending festivities in Sardinia. He issued a claim in the employment tribunal (ET) for indirect discrimination on the basis of his religion and belief.

The ET found at first instance that while attending religious festivals could amount to a manifestation of a religious belief and thus attract protection under the Equality Act 2010 (think attending church on a Sunday), this was not the case for Mr Gareddu.

It is not for a court or tribunal to dictate how an individual worships. However, the ET was entitled to assess whether he really needed five weeks off to manifest his Catholic beliefs. In undertaking this assessment the ET identified a number of inconsistencies in Mr Gareddu's evidence.

In his witness statement Mr Gareddu said he would attend 17 festivals annually, but in the most recent year he had only attended nine. Moreover, while he stated that he attended the festivals of saints with whom he felt a particular affinity, he would not regularly attend festivals in honour of the same saints. Instead, each year he would select which festivals to attend depending on which ones his family members were attending.

The ET thus concluded that Mr Gareddu was not genuine when he said that he required five weeks consecutive annual leave to manifest his beliefs and dismissed his claims.

Mr Gareddu appealed to the EAT claiming the ET had interpreted his evidence in a perverse manner and misinterpreted the law. The EAT disagreed. The EAT found that the ET was entitled to assess whether or not Mr Gareddu’s beliefs were genuine and found no grounds upon which to interfere with the first instance decision.

This case provides important lessons to employers and employees alike. An employee bringing a claim in the ET should be careful not to 'over-egg the pudding'. Mr Gareddu had made comments in his witness statement that looked persuasive on paper but which were not borne out by the facts. Instead of these comments leading to victory for Mr Gareddu, they undermined his credibility in the eyes of the tribunal.  

In addition, the grounds upon which an appeal can be brought are limited. Appeals brought simply because a party does not like the ET's findings are likely to fail. Instead, a clear error of law must be shown.

Employers should have in place a holiday policy with maximum (and even minimum) periods of consecutive leave. They should ensure this policy is communicated effectively across the business and enforced. While few employees would expect five weeks’ leave, some may expect to have the same two or three-week period off each year. Be fair: a ‘first come, first served policy’ with suitable exceptions for significant life events (such as marriage) may be a practical solution.

Maria Krishnan is a solicitor in the employment department at Thrings

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