Case Law Update – April 2017Print publication
Not indirect discrimination for employer to refuse 5-week holiday to attend a religious festival
Gareddu v London Underground Ltd UKEAT/0086/16
The Employment Appeal Tribunal has rejected a claim by a Catholic employee that his employer subjected him to indirect religious discrimination when it refused to allow him to take a five week holiday to attend a religious festival in Sardinia.
Mr Gareddu had argued that the employer’s rule of only allowing a maximum of three weeks’ consecutive holiday amounted to indirect discrimination on the basis that it prevented him from manifesting his religion by attending the religious festival.
Indirect discrimination occurs where the employer applies a rule or practice to someone (with a certain religion or belief) that it applies to everyone but that rule or practice puts the particular employee at a particular disadvantage when compared to others. Indirect discrimination can be justified by an employer if it can show that the rule or practice is ‘a proportionate means of achieving a legitimate aim’.
Mr Gareddu claimed that it was part of his religious belief that he attended and participated an ancient religious festival in Sardinia with his family and that he would require five weeks’ leave to do so. His manager refused this request relying on the employer’s policy allowing a maximum of three weeks’ consecutive holiday only.
At the Employment Tribunal hearing, cracks started to appear in Mr Gareddu’s evidence. The Tribunal found that Mr Gareddu’s religious beliefs were entirely genuine and part of the reason for him wanting to spend time in Sardinia. However, the real reason for his extended holiday request was that he wished to spend a lengthy period of time with his family. The employer had not, therefore, indirectly discriminated against him on grounds of his religious belief. The EAT upheld the Tribunal’s decision.
Walker Morris comment
Mr Gareddu’s case fell down because his attendance at the religious festivals was found not to be the real reason for his extended holiday request. Whilst he would have attended some festivals whilst on holiday, there was no reason why he needed five weeks’ leave to do this.
If the Tribunal had found that Mr Gareddu’s reason for needing five weeks’ holiday was genuinely based solely on attending a religious festival then the employer may have been able to justify any indirect religious discrimination by showing that the rule of not allowing more than three weeks’ consecutive holiday was a proportionate means of achieving a legitimate aim. In other words, that the business could not sustain employees being on holiday for more than this length of time.
If you are faced with a similar request, it is advisable to gather as much information from the employee as possible about the reason and motivation for their request and take a detailed note of what they say. In this case, Mr Gareddu tripped himself up under cross-examination by admitting that he had not previously used his full five weeks’ leave to attend religious festivals but had actually used most of his leave to spend time with his family. It is essential to give proper consideration to the request and, if the decision is to refuse it, be clear about the business and operational reasons behind this. If you suspect that the employee may bring a claim then it is well worth taking legal advice.
Dismissal of a part-time employee for redundancy following her return from maternity leave was sex discrimination, part-time worker detriment and unfair dismissal
Fidessa plc v Lancaster UKEAT/0093/16
The Employment Appeal Tribunal (EAT) has found that an employee who returned from maternity leave on a part-time basis and who was then made redundant had been unfairly dismissed, subjected to detriment as a part-time worker and unfairly dismissed.
Ms Lancaster was employed by Fidessa from 2010 as an engineer in a team of three. She took maternity leave from August 2012 to August 2013 and returned on a part-time basis working four days a week. Fidessa agreed to allow Ms Lancaster to work flexibility (some of her work could be completed at home in the evening) and that she could leave at 5pm to collect her child from nursery. Some time later, one of Ms Lancaster’s managers refused to abide by this arrangement to do some ‘after- hours’ work from home and required her to stay on at work after 5pm.
Fidessa proposed to restructure Ms Lancaster’s team from three engineers to two. A new engineer role would be created with very similar duties to Ms Lancaster’s but with a greater emphasis on work being carried out after 5pm. Ms Lancaster did not apply for the new role because she was unable to meet this requirement and was subsequently made redundant.
She brought claims for direct and indirect sex discrimination, harassment, part-time worker detriment and unfair dismissal. The Employment Tribunal found that:
- Ms Lancaster had been subjected to less favourable treatment on grounds of her part-time status when the company went back on its agreement to allow her to finish at 5pm and work on later at home.
- The requirement to work from the office after 5pm (a requirement of the newly created role) put women at a disadvantage. Given that it had already been established that the work could be done from home, Fidessa could not objectively justify this requirement.
As such, the Tribunal found that Ms Fidessa’s dismissal was tainted by indirect sex discrimination and was unfair. The EAT upheld the Tribunal’s findings and held that whilst Fidessa had a potentially fair reason for dismissal (redundancy), the only reason that Ms Lancaster did not apply for the newly created role was because of the requirement to work from the office after 5pm which was an indirectly discriminatory requirement.
Walker Morris comment
Situations such as these are not uncommon. This decision illustrates just how important it is that employers can objectively justify role requirements which have the effect of putting women (who are more likely to have childcare responsibilities) at a disadvantage. Fidessa’s downfall was that they had already shown that after-hours working from home was possible.
That is not to say that it will never be possible to have requirements in place which may indirectly discriminate against groups with protected characteristics. The employer must, however, be able to objectively justify such requirements by showing that they are a proportionate means of achieving the employer’s legitimate aims.
Caution should also be exercised when dealing with part-time workers (male or female) bearing in mind that the law protects them from less favourable treatment on grounds of their part-time status.