The issue of whether or not attendance at religious festivals in Sardinia could be a genuine manifestation of religion or religious belief been rehearsed again, before an Employment Appeal Tribunal.

Background

In Gareddu v London Underground Ltd [2015] ET/2201116/2015, which we noted here, 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. Mr Gareddu, a Roman Catholic from Sardinia, 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 he was told that for the next year he would not be allowed to do so. Mr Gareddu instituted a grievance procedure, which was unsuccessful, and he was equally unsuccessful with an internal appeal.

Before the ET, London Underground had conceded that participating in religious festivals in Sardinia might constitute a manifestation of Mr Gareddu’s religious belief; however, the Tribunal was not convinced that Mr Gareddu’s assertion that his beliefs required attendance at a series of religious festivals during the period 27 July to 2 September was made in good faith. Moreover, as to his rights under Article 9 ECHR, manifestation 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 [34]. Therefore, his claim for discrimination on the grounds of religious belief failed [35]. He appealed.

The EAT judgment

In Gareddu v London Underground Ltd (Religion or Belief Discrimination) [2016] UKEAT 0086/16/1512, Mr Gareddu contested the ET’s conclusion that he had not been the victim of unlawful indirect discrimination on account of his religious belief on the following four grounds:

(i) That the Tribunal failed to apply the proper approach to determining a claim of indirect discrimination under s 19 Equality Act 2010 (read together with Article 9 ECHR), in particular by failing to make findings as to:

a. the Provision, Criterion or Practice (PCP) in issue;

b. whether the Respondent had applied that PCP to persons with whom Mr Gareddu did not share the characteristic of being a Sardinian Catholic;

c. whether participating in numerous religious festivals during the period around August each year was a typical manifestation of the religious beliefs of Sardinian Catholics (and therefore whether Sardinian Catholics would be put at a particular disadvantage as a result of the PCP);

d. whether Mr Gareddu individually was put at that disadvantage as a result of the PCP; and

e. if so, whether such disadvantage was justified as a proportionate means of achieving a legitimate aim.

(ii) That it had imposed at [33] an unwarranted additional requirement that religion be the sole or primary motivation for Mr Gareddu’s manifestation in order for it to attract the protection of s 19 Equality Act 2010.

(iii) That at [32] and [33] it had considered an irrelevant factor – his desire to worship collectively with his family – in determining whether or not he had acted in good faith.

(iv) That it had adopted, at [18] and further at [32(2)], a perverse construction of Mr Gareddu’s evidence-in-chief in finding that he had claimed to attend the same 17 specific events annually, and flowing from that, that he had changed his evidence during the course of the hearing.

In a fairly short judgment handed down at the end of December and published last month, Simler J concluded that:

• On count (i), it was unfortunate that the Tribunal had not dealt with the impact of the PCP, the question of particular disadvantage and, to the extent necessary, the issue of justification. However, though it would have been preferable had it done so, the failure did not amount to an error of law. [34 & 35].

• On counts (ii) and (iii), the ET had acted properly in limiting its enquiry to determining whether or not the particular manifestation contended for – attendance at a series of festivals over a five-week period in August – was genuine. It was not disputed that attendance at festivals in Sardinia was a manifestation of belief both for Mr Gareddu and for others. The Tribunal had accepted that and had not tried to evaluate the validity of the belief or manifestation or look to family motivations in order to reach an opposite conclusion [30]. However: “The mere fact that attendance at a single festival is a genuine manifestation of religious belief does not inevitably mean that attendance for a five-week period to do so is also a genuine manifestation” [31].

• On count (iv), the ET had acted reasonably and had not been perverse in finding that Mr Gareddu’s evidence in his witness statement about his attendance at the festivals was untrue and incorrect [28].

She dismissed the appeal.