In Gareddu v London Underground Ltd [2015] ET/2201116/2015 (handed down on 1 December 2015 and only just come to our notice) an Employment Tribunal was asked to adjudicate on the refusal to allow an employee a long block of holiday for purposes that were ostensibly religious.

The background

Mr Gareddu was a Roman Catholic from Sardinia: he claimed that his religious beliefs required him to return to Sardinia each year for approximately five weeks around the month of August to take part in religious festivals with his family [3]. From 2009 to 2013, his employer, London Underground, allowed him to take five consecutive weeks’ annual leave during this period; however, in 2013 his new line-manager, Mr Cross, told him that for the next year he would not be allowed to take over five weeks’ continuous leave:

“It is unlikely that you will be granted more than 15 continuous working days of leave during the summer school holiday period. I have to insist on this as it is otherwise unfair to other members of staff in a similar situation as you who cannot be released as they are covering your absence.”

Mr Cross went on to say that this only applied while he was Mr Gareddu’s line-manager and that different manager in the future might take a different view [7]. As it turned out, he allowed Mr Gareddu to take five weeks’ holiday in 2014 because he had already made arrangements to do so – but made it clear that that would be for the final time [9].

Mr Gareddu instituted a grievance procedure, which was unsuccessful. He appealed; and Mr Payne, who heard the appeal, concluded as follows:

• blocks of leave of up two weeks were perfectly ordinary and should only be declined in the event of a very pressing business need;
• blocks of leave of three weeks were not particularly rare but merited discussion between the worker and the line-manager because of the potential to create greater business difficulties and clashes with the wishes of other team members; and
• blocks of leave for more than three weeks were relatively rare, usually being granted for rare events such as marriage, supporting family members through planned medical procedures, once-in-a-lifetime holidays and major religious observances such as the Haj [22].

In brief, he concluded that London Underground’s practice was not normally to grant more than 15 days’ consecutive leave or permission to work from home and that the practice might have the effect of disadvantaging a person who was of a race or religion, or of “a clear structure or belief system”, for which participation in festivals over a continuous period of more than three weeks was obligatory or normal. But he did not find that this applied to Mr Gareddu: his conviction that he should attend all the festivals was a purely personal one that did not amount to a protected characteristic [24]. In any event, the restrictions imposed were a proportionate means of achieving a legitimate aim [25].

The decision

London Underground had conceded that participating in religious festivals in Sardinia might constitute a manifestation of Mr Gareddu’s religious belief; however, the particular manifestation at issue was attendance at a series of festivals which occur between 27 July and 2 September or thereabouts each year [31].

Mr Gareddu’s attendance at any particular festival was entirely dependent on the views of his family and friends. It was not the case that he invariably attended a series of festivals in honour of the same saints, even though he had initially claimed in evidence-in-chief that he attended the same festivals every year [32(1)]. His initial evidence had been that the 17 festivals he hoped to atted “were ones he attended every year and that each one was very dear to him and had a deep religious significance”. It turned out, however, that in the last year in which he had been fit enough to attend, he had in fact only attended nine of the 17 festivals [31(2)]. It also appeared that he regarded his extended family’s August gathering in the region of Sardinia where he was born as an important element in his request for five weeks’ absence [32(3)].

In short, the Tribunal did not find that his assertion that his religious beliefs required attendance at a series of religious festivals during the period 27 July to 2 September was made in good faith. In reality, Mr Gareddu’s motive for wanting that particular lengthy period off work related to family arrangements rather than to his religious beliefs or their manifestation; and his claim therefore failed in relation to domestic law [33].

As to his Convention rights, the manifestation of a belief constituted by attendance at a series of different religious festivals for five weeks around August was not “intimately linked” to the belief, nor was there a sufficiently close and direct nexus between the act and the underlying belief itself:

“Again, it is the assertion of the specific five week period as a manifestation of the belief which causes difficulties for the claim … Whilst it is correct that there is an intimate link or nexus between each individual festival and the underlying belief, there is no such nexus in relation to a series of what may be different festivals each year during that particular period. There is nothing in our view in the five week period in itself which provides a nexus. In fact the governing nexus in relation to the five week period is with the family arrangements rather than the underlying religious beliefs” [34].

The claim for discrimination on the grounds of religious belief therefore failed [35].