In good faith
Labour & European Law Review Weekly Issue 512 22 March 2017
Although attendance at a religious festival can be a genuine manifestation of belief, the Employment Appeal Tribunal (EAT) held in Gareddu v London Underground Ltd, that it did not automatically follow that attendance for a five-week period was also a genuine manifestation. As such a refusal to allow an employee to take five weeks’ holiday was not necessarily indirect religious discrimination.
Mr Gareddu, a practising Roman Catholic from Sardinia in Italy, had been allowed by his employer to take five consecutive weeks’ holiday every summer since 2009 in order to go back to Sardinia with his brothers to visit his mother and attend religious festivals. However, a new manager refused his application in 2015.
Mr Gareddu brought a tribunal claim arguing that the refusal to allow him to take five weeks’ holiday over the summer to attend and participate in religious festivals with his family constituted unlawful indirect religious discrimination contrary to section 19 of the Equality Act 2010.
The tribunal accepted (as did London Underground) that participation in religious festivals could constitute a manifestation of a religious belief. The specific question in this case, however, was whether attending a series of festivals between 27 July and 2 September each year could constitute a manifestation of a religious belief. The tribunal decided that it could not because Mr Gareddu’s claim was not genuine and was not made in good faith.
Although Mr Gareddu argued that he attended the same 17 festivals every year during the same five-week period because of their deep religious significance, the tribunal found that the festivals he attended varied in number and identity from year to year. Indeed, he had not attended any since 2013 because of a broken leg. As the decision about which festivals to attend were a matter for family consultation, the tribunal held that his motive for wanting that particular five-week period every year related to family arrangements rather than his religious beliefs or their manifestation.
The EAT dismissed his appeal. Although Mr Gareddu had argued in his evidence that he attended every one of the 17 festivals each year for reasons of religious faith, he had not attended any in 2014 and 2015. In addition, in 2013, he attended only 9 of the 17 festivals. It was also clear that he did not attend the same festivals every year as his evidence was that he would have attended different festivals from those named during 2013. As a result, the tribunal was right to make a finding that the evidence in his witness statement was unreliable.
Although attendance at a single festival could be a genuine manifestation of religious belief, it did not automatically follow that attendance for a five-week period was also a genuine manifestation. The EAT made the comparison with a “churchgoing family man” who argues that he needs the whole weekend off work to attend church with his family but, in reality, only goes on Sunday and goes shopping with his family on Saturday. The fact that his assertion is partly true does not prevent a tribunal from deciding that his asserted requirement for a whole weekend off work in order to manifest his religious belief is not a genuine one. The question here was whether the assertion that Mr Gareddu needed a five-week period in the summer to attend a series of festivals was genuine. According to the tribunal, it was not.
In light of the evidence and its findings of fact, the tribunal was entitled to conclude that the true or genuine reason for wanting a five-week period was not Mr Gareddu’s religious beliefs or their manifestation but related to the family arrangements. Those findings were decisive of the claim and the appeal therefore failed.