Rejecting holiday request to attend religious festivals was not indirect discrimination
In Gareddu v London Underground Ltd the Employment Appeal Tribunal considered whether an employer’s refusal to agree to an employee’s request for five weeks’ consecutive holiday amounted to indirect religious discrimination.
Mr Gareddu was a practising Roman Catholic and was employed by London Underground as a Quality Engineer. He was entitled to 38 days’ holiday each year, including bank holidays. Between 2009 and 2013, Mr Gareddu was allowed to take five consecutive weeks’ holiday each summer, when he returned to Sardinia, which was his place of birth. However, in 2013, a new manager was appointed and told Mr Gareddu that from 2015 onwards, he would no longer be permitted to take five weeks’ consecutive holiday and the maximum amount of holiday he would be permitted to take at once was three weeks.
Mr Gareddu brought a claim for indirect religious discrimination. He argued that it was part of his religious belief that in August each year he would attend and participate with his family in ancient religious festivals held in Sardinia. Mr Gareddu claimed that his employer’s practice of only allowing employees to take a maximum of three weeks’ consecutive holiday indirectly discriminated against him, as it prevented him from manifesting his religion by attending religious festivals.
The Employment Tribunal rejected Mr Gareddu’s claim and his appeal to the EAT failed. The Tribunal found that the last time Mr Gareddu had actually attended religious festivals in Sardinia was in 2013, as he was unable to attend festivals after this time due to injury. In addition, in 2013, Mr Gareddu had only attended nine of the 17 religious festivals he claimed it was important for him to attend. Furthermore, the decision as to which religious festivals Mr Gareddu attended was entirely dependent on the views of his family and friends. These findings of fact suggested that Mr Gareddu’s beliefs weren’t genuine and that there was no particular requirement for him to take five weeks off every August to attend religious festivals. The Tribunal took the view that the real reason Mr Gareddu wanted to take five weeks’ holiday each August was to be with his family.
Previous cases have established that the types of religious and philosophical belief which qualify for protection from discrimination under the Equality Act 2010 are wide-ranging and the manifestation of those beliefs can also differ widely. However, in this case, although attending religious festivals in Sardinia was a manifestation of Mr Gareddu’s religious beliefs, it was not the real reason for his request for five weeks’ holiday. Furthermore, even if it had been a genuine request relating to Mr Gareddu’s religion, his employer may have been able to justify its refusal on the basis that limiting employees’ holidays to three consecutive weeks at a time was a proportionate means of achieving a legitimate aim.
Plumber was a worker rather than a self-employed contractor
The Court of Appeal in Pimlico Plumbers Ltd and Mullins v Smith has ruled that a plumber who was ostensibly engaged under a contract which stated he was self-employed was in fact a worker. Under the Employment Rights Act 1996 a “worker” includes both a person who is employed under an employment contract and a person who is employed under another type of contract under which “the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not that of a client or customer of any profession or business undertaking carried on by the individual”. A person who carries out work who does not fall within either definition of a “worker” will be self-employed.
Mr Smith worked as a plumber for Pimlico Plumbers Limited for over five years. His contract stated that he was self-employed and he filed his own tax returns. However, when Mr Smith’s contract with Pimlico was terminated after he suffered a heart attack, he brought claims for unfair dismissal, wrongful dismissal, disability discrimination, unpaid holiday and unlawful deductions from wages.
The Tribunal held that although Mr Smith was not an employee, he was a worker. Although the Tribunal gave careful consideration to the terms of Mr Smith’s written contract, they also looked at what had happened in practice. Factors which pointed towards Mr Smith’s worker status included the fact that Mr Smith was required to do a minimum of 40 hours work per week, was subjected to a significant degree of control by Pimlico, was subject to restrictive covenants, drove a Pimlico branded van and was required to wear a Pimlico uniform. However, he was not an employee due to other factors, such as the fact that he provided his own tools and bore a significant proportion of the commercial risk.
Mr Smith’s worker status meant that he was permitted to bring his claims relating to disability discrimination, unpaid holiday pay and unauthorised deductions from wages claims against Pimlico. However, as he was a worker rather than an employee, he was not permitted to pursue his other claims, which only employees are entitled to bring.
This case serves as a reminder to employers to ensure that people who perform work for them are categorised correctly and given the right sort of contract. Attaching the wrong label to the relationship not only means that individuals may be able to bring Employment Tribunal claims against the organisation relating to their worker/employee status which the organisation is not expecting and may not be prepared for, it also means the organisation is unlikely to be adequately protected under the terms of the contract. Getting self-employed/worker/employee status wrong can have serious tax implications for employers too.
Increase in Tribunal awards from April 2017
In April 2017 the maximum compensatory award for unfair dismissal will increase from £78,962 to £80,541 and the maximum limit on a weeks’ pay for the purposes of various statutory awards, including the basic award for unfair dismissal and statutory redundancy pay, will increase from £479 to £489 per week.
The increases are based on the Retail Price Index for September 2016, which increased by 2% compared to September 2015. The new figures will take effect where the employee’s effective date of termination (which in most cases is the date the employee’s employment terminates) is on or after 6 April 2017.