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Time off work for celebrating what you believe in

As brand and legal guru Ardi Kolah reports in his last column of the year, there's now a new legal duty on employers to recognise other religious holidays and not just Christmas.

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It's easy to assume that Christmas is the key holiday time of the year for most workers. But not everyone is a follower of the Christian faith and workers from other ethnic communities and religious faiths have just as much right to enjoy a religious festival as their Christian counterparts. This is the key principle that lies behind the new Employment Equality (Religion or Belief) Regulations 2003.

Summary of Employment Equality (Religion or Belief) Regulations 2003

On December 2 2003 the law changed to recognise the rights of non-Christian workers to celebrate their own religious festivities throughout the year.

These regulations apply to vocational training and all facets of employment -- including recruitment, terms and conditions, promotions, transfers, dismissals and training. They make it unlawful on the grounds of religion or belief to:

  • discriminate directly against anyone. That is, to treat them less favourably than others because of their religion or belief;

  • discriminate indirectly against anyone. That is, to apply a criterion, provision or practice which disadvantages people of a particular religion or belief unless it can be objectively justified;

  • subject someone to harassment. Harassment is unwanted conduct that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment having regard to all the circumstances and the perception of the victim;

  • victimise someone because they have made or intend to make a complaint or allegation or have given or intend to give evidence in relation to a complaint of discrimination on the grounds of religion or belief;

  • discriminate or harass someone in certain circumstances after the working relationship has ended.

    Exceptions may be made in very limited circumstances if there is a genuine occupational requirement for the worker to be of a particular religion or belief in order to do the job or to comply with the religious or belief ethos of the organisation.

    The 2003 Act prohibits direct and indirect discrimination on the grounds of religion or belief. So a worker of any faith is now entitled to take time off work for religious observance. For example, it could be an entire day to celebrate the Muslim festival of Eid or the Zoroastrian festival of Navroz, or 10 minutes at particular times of the day to pray.

    However the caveat is that employers don't have to grant requests if they conflict with operational needs.

    Is this the law giving with one hand and taking with the other?

    It sounds a bit like that.

    Although the law stops short of giving an express right for employees to take time off for religious purposes, employers do run the risk of liability for direct discrimination if they refuse to grant such leave because of the employee's religion or belief. And should this be the case, the employer could end up in the employment tribunal and risk being heavily fined.

    Employers also risk charges of indirect discrimination if they have company rules or practices that are disadvantageous to employees of a particular religion or belief and which can't be justified for other reasons.

    Definition of religion

    Trying to define what is "religion" sounds like a post graduate PhD in theology. Is something that contains collective worship, a belief system and a profound belief affecting an individual's way of life qualifies as a "religion"?

    There's no escaping the fact that a central part of the 2003 regulations is the broad definition of what constitutes a religion or belief. Religion or belief is defined by the 2003 Act as being any religion, religious belief or similar philosophical belief (not very helpful, eh?).

    It naturally encompasses those who define themselves as Zoroastrian (myself included), Muslim, Protestant, Roman Catholic, Jehovah's Witness, Mormon, Sikh, Rastafarian and as members of other "official" religions, but it also includes beliefs such as druidism, pacifism, veganism, Scientology, atheism and agnosticism.

    Religion in this context doesn't include any philosophical or political belief unless it's similar to religious belief (and while we're on the subject -- football is religion too, isn't it?)

    In short, what the regulations say is that all deeply held beliefs need to be respected.

    And what happens if an employer or manager doesn't believe that a particular religion or belief is valid? Who's to say that their judgment is right or wrong? And when is "religion" actually a "cult" and therefore not within the meaning of the 2003 Act? It'll be for the Employment Tribunals and the courts to decide whether particular circumstances are covered by the 2003 Act.

    And although the new legislation appears to raise more questions than it answers, in practice I think it's going to be pretty straight forward to comply with in 99.99% of requests made.

    For example, many organisations already have prayer rooms for employees which goes some way to mitigate disruption at the workplace. But from now on employers must also provide facilities for staff who need to pray at certain times during the day.

    Equally important is that the layout and upkeep of such rooms is carefully monitored. Some faiths don't allow both sexes to use the same room, so that needs to be taken into account, or it might be that the room needs to face a particular direction or that washing facilities are required.

    Practical steps

    HR departments need to think through the implications of the new Act and it may be a good idea to create an annual schedule of when religious festivals and events take place and disseminate this information among line managers within the organisation, a practice adopted by many councils in the UK.

    For example, Birmingham City Council allows employees to take up to four days of leave (from their annual leave entitlement) to observe religious holidays. If this conflicts with the council's needs (operational requirements) then that working day is treated just like a bank holiday for that employee and therefore is paid for at an enhanced rate.

    Conclusion

    Employers aren't legally bound to grant every request for time off for religious observance, but they are required to consider requests and have lawful reasons for not granting such requests.

    Clearly it's in everyone's interest that such requests are received in a sympathetic and understanding way which is what good industrial relations is about in the first place, isn't it.

    Where there's a will there's a way -- so if employers and employees can work out a solution it will lead to more harmonious and productive working environment.

    And as we already know -- diversity is good for business.

    So have a happy holiday. Enjoy Christmas, survive New Year and I'll see you on the other side.

    Ardi Kolah appears on the Chartered Institute of Marketing's global top 50 list of leading marketing thinkers. He is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online here.

    If you have an opinion on this or any other issue raised on Brand Republic, join the debate in the Forum here.

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