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With a number of different religious beliefs and their festivals, practices can find themselves inundated with holiday requests from employees – especially when they ask for time off to observe festivals that are not public holidays.
With the need to offer round-the-clock care, management must balance the needs of the business against the requirement to treat employees fairly and lawfully.
Chloe Themistocleous, an associate in the human resources team at Eversheds Sutherland, said it was understandable that, to avoid the risk of being understaffed, employers often asked if, at the recruitment stage, they could hire employees from a variety of religious backgrounds to avoid everyone wanting the same religious holidays.
However, as she explained, refusing to employ someone based on his or her religion or belief is discriminatory and, except in extremely limited circumstances, unlawful.
She said: “Quite simply, turning down a Muslim applicant in favour of a Jewish applicant purely because the majority of the company’s existing workforce are Muslims, for example, would likely expose the employer to claims for discrimination on the grounds of religion or belief.”
Policies and procedures
The reality is, as Ms Themistocleous advised, it is more common for employers to maintain staffing levels during religious festivals “by implementing an objective and transparent holiday request system that is clearly documented”. She explained that the system “must be fair and not disadvantage any particular employees, while also meeting the needs of the business”.
But how should this be done? Ms Themistocleous suggested practices used employment contracts, handbooks and policies to set out how employees must request holidays and under which circumstances requests may be refused. She added: “Employers might also want to expressly reserve the right to refuse holiday requests or cancel previously approved holiday dates in light of business needs or unusual circumstances.”
Other potential restrictions Ms Themistocleous said practices may want to cover off include the maximum number of consecutive days’ holiday that can be taken, a requirement for employees to obtain explicit management approval for holiday dates prior to making firm plans, and particular times of year when employees are required – or not permitted – to take holiday due to business needs.
She emphasised, though, that any such restrictions “must be justifiable with reference to legitimate business needs”. She said: “A blanket holiday ban during a certain period, for example, could be ‘indirectly discriminatory’ if it disadvantages members of a certain religion or belief, unless it can be objectively justified.”
It should also go without saying that all policies and procedures must be applied consistently, and with reference to objective factors. With an eye to forestalling trouble, Ms Themistocleous said failure here could result in the practice being accused of favouritism or even discrimination.
Dealing with holiday requests
With the background established, the next logical question is do practices have to grant holiday requests that are made in relation to an employee’s religion or belief? The answer, said Ms Themistocleous, is no. This is because employees have no automatic right to time off for religious observance and employers are, therefore, not legally bound to grant such requests.
But employers can’t just impose blank determinations on when employees can take holidays. From Ms Themistocleous’ point of view, “employers should give proper consideration to such requests and be flexible where possible”. She said many other “reasonable ways to accommodate” the employee’s request may exist, such as unpaid leave or flexi-time.
Dismissing a request simply because it is a busy period or others already have time booked off, without any further consideration, may not constitute an objective justification and is likely to cause more trouble than it’s worth with an employee.
There’s another interesting point to be made here. An extremely broad range of religious and philosophical beliefs are protected under the Equality Act and employees may manifest their beliefs in widely different ways. Themistocleous’ advice to practices is they “should not dismiss an employee’s request because they do not consider the employee’s beliefs to amount to a ‘religion’ and must also not try to dictate how an individual should choose to worship”.
So, how to decline a request? Ms Themistocleous recommended if a compelling business reason existed – unrelated to the employee’s religion or belief – as to why the time off must be refused, the employer should respond promptly, noting the legitimate reasons while referring to the holiday policy. However, she said: “Refusals must be dealt with sensitively and in a supportive manner.”
She continued: “It’s also common sense to keep employees onside and so to improve relations, the employer should try to reach a compromise with the employee by, for example, putting him or her at the top of the priority list for the following year.”
It’s unfortunate that, despite the best efforts of an employer, some employees may fail to come to work despite being refused the time off as holiday.
In such circumstances, employers must investigate the reasons behind the absence on the employee’s return to work. Ms Themistocleous said: “If, following the investigation, the employer reasonably believes the nature of the employee’s absence was not genuine, the appropriate steps under the company’s disciplinary or absence policy can be taken.”
That, sadly, can mean following a fair dismissal process.
The Advisory, Conciliation and Arbitration Service has guidance at www.acas.org.uk/religiousfestivals
- This article first appeared in Veterinary Times VT49.44 (4 November 2019 issue).