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This question was explored in the recent case of Gareduu v London Underground Limited [2016] UKEAT/0086/16/DM. The Claimant claimed that he had been indirectly discriminated against because of his religion as he had not been permitted to take 5 consecutive weeks’ holiday in order to attend 17 Roman Catholic ceremonies with his family in Sardinia.

Indirect discrimination is where a person A, discriminates against another B by applying a provision, criterion or practice (PCP) which is discriminatory in relation to a protected characteristic of B’s (in this case the protected characteristic is religion or belief). A PCP is discriminatory where it is applied equally to those who do and not share the protected characteristic, but puts people who do, at a disadvantage which cannot then be justified by the employer as a proportionate means of achieving a legitimate aim.

In this case, the Claimant had for a number of years been permitted to take the 5 consecutive weeks’ holiday he requested. However due to the application of a new policy in relation to holiday, he was only permitted to take up to 3 consecutive weeks’ holiday in 2015. London Underground sought to justify this by arguing that the period of holiday requested fell over the summer holidays when a number of other employees also wanted to take leave. The Claimant argued that the practice of not allowing more than 3 consecutive weeks’ holiday put him at a disadvantage in relation to his religion because his attendance at all 17 festivals was a ‘genuine manifestation of his faith’.

The Tribunal at first instance found on the facts that a requirement to attend all 17 festivals over the relevant 5 week period was not a genuine manifestation of his faith. The Claimant had in previous years only attended those festivals that his family and friends would also be able to attend, and this was upheld on appeal. However, had it been a genuine manifestation of his faith, the Tribunal would have needed to consider whether London Underground could objectively justify their practice of not allowing more than 3 weeks’ consecutive holiday for the reasons given, as proportionate means of achieving a legitimate aim.

What the Gareduu case reflects is that there is a large subjective element to these types of claims. Firstly whether or not the individual employee has a religion or belief that is covered by the Equality Act, and secondly whether the act they are requesting approval for is a genuine manifestation of that religion or belief. The practical starting point for employers therefore, is to consider the request for holiday on a case by case basis in line within the specific operational requirements of the relevant area of their business at that time, irrespective of the underlying reason for the request and any blanket policy on holiday. If the request cannot be granted due to the genuine occupational requirements of the business then that decision is more likely to be justified as a proportionate means of achieving a legitimate aim.

If you have any questions regarding this topic or any employment issue, please contact Emma Sangeelee – Senior Associate, or any member of the Edwin Coe Employment team.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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