Where do you draw the line with protection of workers on the grounds of religious or philosophical belief? It is a question that I have been addressing in this blog ever since protection from discrimination on these grounds was first introduced. It is logical that there is a limit. For example, if a person’s belief is used as justification for discriminating against others, there can be no case for allowing the alleged victim of discrimination him or herself to engage in discriminatory acts. Another question is whether and if so at what point the manifestation of a religious belief tips over the edge between a “reasonable” accommodation and one which, perhaps for a number of reasons, “just goes too far”. That leads us to the remarkable case of Mr Gareddu, a practising Roman Catholic of Sardinian origin.
Gareddu v London Underground Limited concerned Mr Gareddu’s requests for summer holidays running from 27 July to 2 September (five consecutive weeks). He joined London Underground in 1990 and was entitled to 38 days’ holiday per year (including Bank Holidays). From 2009 to 2013 he took five weeks’ consecutive summer holiday to travel to Sardinia with his two brothers to visit his mother and attend a number of religious festivals, up to 17 per visit. He said that he would attend the festivals for those saints with whom he felt a particular affinity.
In March 2013 a new line manager, Mr Cross, took over. He refused the request for five weeks’ holiday and said that, in future, he would be unlikely to be granted more than 15 continuous days during the summer holiday period. As it happened the 2014 trip was pre-booked and allowed but a holiday request from 27 July to 2 September 2015 was refused. Mr Gareddu contended that this amounted to indirect religious discrimination, contrary to section 19 of the Equality Act 2010.
At a tribunal in December 2015 Mr Gareddu’s claim failed on the basis that the “asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September” was not made in good faith. While attending religious festivals was a manifestation of religious belief, being required to do so within a specific five-week period was not in itself a specific manifestation capable of protection under the Act.
Mr Gareddu appealed to the Employment Appeal Tribunal on four grounds:
- The tribunal took the wrong approach by failing to make findings as to the provision, criterion or practice (PCP) in issue, whether the employer applied that PCP to people with whom Mr Gareddu did not share the characteristic of being a Sardinian Catholic, whether participating at numerous religious festivals was a typical manifestation of the religious beliefs of Sardinian Catholics, whether Mr Gareddu was put at a disadvantage as a result of the PCP and, if so, whether the disadvantage was justified as a proportionate means of achieving a legitimate aim.
- The tribunal imposed an unwarranted additional requirement that religion should be the sole or primary motivation for the manifestation in order to benefit from protection under section 19.
- It considered an irrelevant factor – the desire to worship collectively with his family – when considering whether he had acted in good faith.
- It adopted a perverse construction of Mr Gareddu’s evidence by finding that he had claimed to attend the same 17 events annually and, flowing from this, that he had changed his evidence in the course of the hearing.
In the Employment Appeal Tribunal, President Mrs Justice Simler DBE, having considered the law, pointed out initially that the case was not about whether participating in festivals in Sardinia was a typical manifestation of the religious beliefs of Sardinian Catholics. The question was whether Mar Gareddu’s specific request was genuine and made in good faith.
She began by considering ground four – perversity. It turned out that in 2014 Mr Gareddu had not attended any festivals because he had broken his leg and in 2015 he suffered a second leg break which also impacted on his attendances. In 2013 he had attended only nine of the listed 17 festivals. There was therefore a clear inconsistency in his evidence and ground four therefore failed.
She then went on to consider grounds two and three together. The tribunal’s enquiry was properly limited to determining whether the particular manifestation of belief by attending a series of festivals within a particular period was genuine. No-one disputed that it was not so the question of whether Mr Gareddu had other motives was irrelevant.
However, in this case the true or genuine reason for wanting a five-week period was not his religious beliefs or their manifestation but was his wish to be with his family. However, importantly, the tribunal did not hold against Mr Gareddu his desire to worship with his family. What the tribunal tested was the genuineness of his assertion that he was required to do so over a period of five weeks from late July to early September. It followed that both grounds failed.
That left ground one, relating to the PCP. The bottom line was that the findings of fact made by the tribunal concerning lack of good faith and genuineness of the asserted manifestation or belief were decisive.
Mr Gareddu could not have succeeded in establishing particular disadvantage in circumstances where it is necessary for the particular disadvantage to flow from holding or practising the religious belief in question.
In other words, the religious belief and its manifestation were certainly capable of protection but Mr Gareddu had overstated his case to the extent that its basis was undermined.