A belated L’shanah Tovah!
As of today, it’s the 3rd Tishri 5782, which means it’s the third day of the Jewish year. For all our Jewish readers, we wish you a wonderful new year. Gemar chatimah tovah!
For our blog post this week, we thought we would look at the law surrounding religious holidays. England is not one uniform culture or belief, despite being primarily a Christian country. 5% are Muslim, nearly 1% are Sikh, 1.5% are Buddhist, 0.5% are Hindu, 0.5% are Jewish, and a further 0.5% identify as belonging to some other religion. Furthermore, Christians are amongst the least likely to attend religious services, which means if you have a diverse workforce with people who belong to another religious group, you will have to consider the possibility their holidays come at a different time of the year to Christmas and Easter or they may want time off to observe their religious practices.
So, we’ve decided to ask; as an employer, what rights do your employees have to religious time off? Do employers have to honour religious holidays? Can employees be denied leave for their religious obligations?
What counts as a Religious belief?
As we mentioned in our dress codes post last week, some religious groups counted as ethnicities before the religious protection provisions came into force; the decision on Mandla vs Dowell Lee was made on the basis of racial discrimination because Sikhs were defined as an ethnic group. However, this changed with the Treaty of Amsterdam in 2000. The UK adopted provisions from the European Employment Framework Directive, which became a part of the Employment Equality Act of 2003.
The equality act approaches defining religion and belief like so;
- ‘Religion’ means any religion;
- ‘Belief’ means any religious of philosophical belief;
- A reference to religion includes reference to a lack of religion;
- A reference to belief includes a reference to a lack of belief.
If that seems broad and like it is, in fact, attempting to avoid defining religious belief, it was intentional. The government did not believe it should define any religions given how many different beliefs there are and how many different permutations and interpretations of religious scriptures there are. As we’ll discuss below, the rules about how many people need to believe a specific thing are a little vague and open to interpretation by courts on a case-by-case basis.
Having said that, the Equality act does define a philosophical belief worthy of protection like so;
- A belief must be genuinely held;
- It must be a belief, and not an opinion or viewpoint based on the present state of information available;
- It must be a belief as to a weighty and substantial aspect of human life and behaviour;
- It must attain a certain level of cogency, seriousness, cohesion and importance;
- It must be worthy of respect in a democratic society, be not incompatible with human dignity, and not conflict with the fundamental rights of others.
In another post, we’ll look at that last one in more detail – discussing the interplay of religious rights and other rights (particularly gender and sexuality rights) is a whole post by itself. For the minute, we only need these definitions as much as it will help us discuss what counts as a religious belief and how you could run afoul of religious discrimination laws.
On top of the above qualifiers for beliefs worthy of protection, the law makes a requirement for the demonstration of something called group disadvantage. What this means is the person making the claim for religious discrimination must show that the rules about a particular practice would put a particular group of people at a disadvantage compared to their peers.
This is a bit nebulous, so let’s break it down with a case study. Mba vs London Borough of Merton, 2014. Whilst Ms Mba lost this case – we’ll get onto why she lost shortly – there is a large portion of the case that’s relevant to us, and that’s the court’s attempt to establish whether the practice of making Ms. Mba work on a Sunday was a part of her Christian faith or not.
The court wrote “…sensitivity to the diversity of beliefs between and within religions is something which flows from the respect that is accorded to the range of sincerely held religious beliefs.” To break that down, the court says that to truly respect a sincerely held religious belief, the court must accept that not everyone within the religion will hold the same set of practices and beliefs.
Religions are not a monolith where everyone uniformly agrees on interpretation, orthodoxy and practice. A Mormon does not practice like a Methodist. In Judaism, debate on interpretations of the Tanakh is written in the Talmud, a group of texts that, if you read a single double-sided sheet per day (as Jewish people do as part of a practice called Daf Yomi), takes over seven years to read. Even within sects and traditions, people do not agree on all interpretations (ask a room of Jews whether chicken should be pareve, I promise it’ll be worth it.)
Ms Mba was a Sabbatarian – someone who believed in the holy sanctity of Sunday and would not undertake work on the Sabbath, instead choosing worship. However, not all Christians are Sabbatarians, and many would happily work on Sunday.
The judge concluded his judgement on this part of the appeal by saying “It described Mrs Mba’s Sabbatarian belief as ‘not a core component of the Christian faith’. By so doing it opened the door to a quantitative test on far too wide a basis”. In short; it’s not the place of the courts to judge a belief based on whether it’s a ‘core component’ of the faith. The fact it is a widely held belief of Christians to not work on Sundays is enough.
But, it does have to indiscriminately affect a group. In this case, not all Christians, but all Sabbatarian Christians would be affected by the duty to work on a Sunday. If this was a case of Ms Mba having a particularly and unusually zealous interpretation of the commandment “Remember to keep holy the Lord’s Day”, the story would be very different indeed.
What impact does the religious holiday have on your employee?
What is the result of asking an employee to work on a religious holiday? That is an important part of the equation when it comes to deciding whether to agree to the request.
Since this post started with Rosh Hashanah, let’s talk about the High Holy Days, particularly the most exciting and terrifying holiday in the Jewish Calendar. Yom Kippur, the Jewish Day of Atonement, is fast approaching. Of all the holidays in the Jewish calendar, this one is the most important to Jewish people. Those who avoid synagogue the rest of the year will still show their faces on Yom Kippur.
It’s very, very important, is the point.
The impact of asking a Jewish employee to work on Yom Kippur could be quite high for that employee, not just because of the commandments in the Tanakh to lay down their occupations and for them to attend their synagogues. It maybe they continue to uphold the commandment to fast, a burden made much easier by sitting in a synagogue praying than working.
Likewise, imagine the impact of asking a Christian to work on Christmas. For the devout, it is a holy day, but it’s also an opportunity to share time and joy with family and friends and rest from the rigors of daily life. Christmas is an important time of the calendar for Christians, just as the High Holy Days are for a Jew and Eid is for a Muslim.
‘Well, if they don’t like it, couldn’t they just find a different job?’, you might ask. And the answer to that is simply courts do not agree that ‘find another job’ is an acceptable defence.
What impact does the religious holiday have on other employees?
The other essential question is “will this have an undue burden on your other employees”? Consider a situation where a pair of employees in a small bakery want every Sunday off, and that requires a schedule shuffle which will make every other employee work almost every Sunday to cover them. Sundays are important to a lot of people, not just Sabbatarian Christians – in some cases, it’s their one true day of rest where their families are also off. In that case, it would be depriving other employees of valuable family time, and it would be perfectly acceptable to deny their request.
Or consider a school board on the run-up to the new school year. There is a lot of work to get done in preparation for the new school year, and an employee asking for time off for a religious holiday in the middle of that run-up might leave behind a lot of work that needs to be picked up by the employees around them. Those employees already have high workloads and giving them more work to do could be incredibly stressful.
And we promised we’d return to Ms Mba and explain why she lost her case; the answer is that it would put an undue burden on her colleagues. Ms Mba was employed as a care assistant at Brightwell, a children’s home run by the London Borough of Merton. The care home attended to the very complex 24/7 needs of ill and disabled children, and so Brightwell needed staff on Sundays. An attempt was made to adjust Ms Mba’s rostered hours so she worked fewer Sundays, but her job description included a provision stating a need for staff to work “…outside normal working hours as required by the shift rota including weekends, Bank holidays and sleeping duties.”
Given providing Ms Mba with Sundays off would put the undue burden of having to do more work outside normal working hours onto her colleagues, Brightwell was within its rights to discipline Ms Mba for refusing to work her rostered hours.
What impact does the religious holiday have on the business?
The third thing that you need to consider when deciding to approve religious holiday is your business needs. Like we were discussing in the dress codes post with Bougnaoui vs Micropole SA, a decision to prevent an employee expressing their religious affiliation can be made, so long as it serves ‘a legitimate business interest’.
To recap on Bougnaoui vs Micropole SA; Ms Bougnaoui was refused the right to wear her hijab as part of her Muslim faith because a customer had complained about the head covering. Ms Bougnaoui was awarded the case because ‘a customer complained’ was not part of a legitimate business aim, and her right to express her religious beliefs had a higher priority.
To discuss business needs, we’ll discuss two similar suits regarding Muslim head coverings that was awarded to the employer, Azmi vs Kirklees MBC and Achbita vs G4S Secure Solutions NV.
In the case of Azmi vs Kirklees MBC, Ms Azmi worked in a school for minorities. As part of her job description, she would need to instruct children on speaking a second language, because she was working with bilingual children at risk of falling behind. Children in a learning environment need to be able to communicate clearly with their teachers, and often sought non-verbal cues like facial expressions when learning new material.
However, Ms Azmi wanted to wear a niqab when in the presence of male teachers, owing to her Muslim faith. After assessing her performance, the school decided that Ms Azmi’s niqab was interfering with her ability to do her job and requested she did not wear the veil. Attempts were made to compromise, but her own suggestions were infeasible. The court found that the school’s complaint her veil compromised her ability to teach held water, and the school’s business aim was a higher priority.
In the case of Achbita vs G4S Secure Solutions NV, the business’ aim had to do with neutrality. They wanted to have an image of political, religious and philosophical neutrality. When Ms Achbita refused to remove her hijab, G4S dismissed her from her role. Since the removal of the veil was ‘strictly necessary’ to meet that business aim, the dismissal was held to be lawful – though in both this case and in Ms Azmi’s case, the dismissal was only lawful because the companies had no roles to shuffle them into where their refusal to remove a headscarf/veil did not impact their work or the company’s neutrality aim.
There are limits; if it can be shown that allowing an employee their freedom of expression would not ‘do violence’ to the employer’s business aims, then it cannot stand, as in Bougnaoui vs Micropole SA. But if giving employees religious holidays off would sufficiently impact a business aim, then it can be denied.
This can be an incredibly tricky topic, and so we advise anyone facing this situation to treat it with caution and seek advice. Because of how tightly it is linked with religious discrimination charges, you should err on the side of caution when dealing with requests for religious leave.
Much like with regular annual leave, if an employee requests time off for their religious holiday and you cannot give it to them because of the financial burden or other damages to the company, you can say no. But it has to be weighed alongside all the other factors we’ve discussed, and you have to ensure that the treatment does not adversely affect one particular religious group.
Regardless, we hope the information we’ve posted here is useful, and we once again wish our Jewish readers a safe and peaceful High Holiday season.