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Holiday entitlement and discrimination

In this holiday season, we put the spotlight on holidays and offer practical advice when dealing with some of the technical or legal issues concerning holiday entitlement. In the second instalment of this two-part article on holiday entitlement, we focus on discrimination issues including religious holidays, age and sex discrimination.

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This week, we put the spotlight on holidays and offer you practical advice for dealing with some of the technical and legal issues surrounding holiday entitlement. In the second instalment of this two-part article on holiday entitlement, we focus on discrimination issues including religious holidays, age and sex. Religious holidays and discrimination issues Employers should be aware of potential discrimination on the grounds of religion or belief if a worker requests annual (or unpaid) leave in order to observe a religious holiday or festival. In Khan v NIC Hygiene Ltd, Mr Khan (a Muslim) applied in writing to his employer to use all his annual leave in order to undertake a pilgrimage to Mecca. When he did not receive a response, he was told by his manager to assume it had been approved. He was then dismissed when he returned to work six weeks later, on the grounds of misconduct for taking unauthorised leave. The Employment Tribunal found that Mr Khan had been unfairly dismissed and had suffered discrimination on the grounds of religion or belief. In practice, a refusal to grant an employee's request for annual leave should be accompanied by strong business reasons which are not related to religion or belief. Having a clear policy in force in respect of the timing of holidays and the processing of requests will assist you in these circumstances. Length-of-service holiday increases: age discrimination There may be indirect age discrimination if an employer increases holiday entitlement for longer serving employees because older workers are more likely to have completed the requisite amount of service than younger workers. However, under Regulation 32 of the Employment Equality (Age) Regulations 2006, employers may increase a worker's holiday entitlement on the basis of length of service (of five years or fewer) and/or may increase holiday entitlement after more than five years' service where they reasonably believe that there is some business benefit (such as rewarding loyalty or experience). On the face of it employers should have few concerns for benefits awarded with reference to length of service of over five years as the standard of proof appears to be fairly low. However, the Acas Guidance states that in order to fall within the business-need exception "employers would need evidence from which they can conclude there is a benefit to the organisation. This could include information the employer might have gathered through monitoring, staff attitude surveys or focus groups for example." Whether this is an accurate statement of the law remains to be seen, but employers would certainly be prudent to follow ACAS's advice. You should demonstrably go through the process of actively considering whether the long-service criteria you use actually does fulfil business needs, and articulate/record reasons why those criteria remain in place. Length-of-service holiday increases: sex discrimination and equal pay A similar problem may also apply under the Sex Discrimination Act 1975 or Equal Pay Act 1970. Length of service requirements may indirectly discriminate against women, since women are more likely to take career breaks to bring up children and therefore are less likely than men to attain long service in a particular job. There is no equivalent to Regulation 32 (for age) in the sex discrimination legislation, so employers must rely on objective justification if the use of length of service as a criterion in awarding extra holiday (or any other benefit) has a disproportionate impact on women. However, in Cadman v Health and Safety Executive, the European Court of Justice held that, as a general rule, benefits based on length of service can be taken to attain the legitimate objective of rewarding experience. So, it appears that employers may use length of service as an acceptable ground of justification. It should be borne in mind that workers may challenge service related benefits, such as awarding extra holidays, where they raise "serious doubts" that greater length of service is appropriate to obtain a legitimate objective such as rewarding experience or loyalty. Therefore you should ensure that you have thought about this and can explain your justification. You should look at the nature of the job in question and also the length of time over which the extra holiday benefit and service are linked. Click here to read part one of this two-part article. To find out how the Forum can help you to manage employees and stay on the right side of the law, call us on 0845 130 1722.

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