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Recently we were asked whether a small Pre-school’s approach to fix holidays to school holidays and only permit staff to take unpaid leave in term time if they could arrange someone to cover them was in actual fact discriminatory behaviour.

The concern was that some of their staff had commented that given that they celebrated their religious festivals during term time, that they were not able to take paid leave at a time that suited them. Whilst the employer was sympathetic to the ladies request to be able to take paid leave for Eid, it was recognised that as a term time only setting, fixing holidays was part of the terms and conditions of employment.

Direct discrimination it is not. Direct discrimination is when someone is treated differently and not as well as other people because of their religion or belief.

Whether this is indirect discrimination which is where a workplace rule, practice or procedure is applied to all but disadvantages people who hold a particular religion or belief is harder to disagree. I am sure every term time only setting would like to be able to grant staff holiday in term time, but it just isn’t possible.

Therefore we feel this potential indirect discrimination can be justified as the small term time only Pre-school can’t permit staff to take paid leave during term time where the staff are needed to work with the children in ratio. The resources of the Pre-school would probably not exist to enable them to hire agency workers and pay holiday pay at the same time.

It’s tricky though whilst the legitimate aim of the practice of fixing term time workers holiday for school holidays is sound, and Pre-school children are on holiday during school holidays, the impact on certain religious groups can’t be denied.

There are two cases that I would refer you to that are related to this sort of issue;

  • One case is Khan v G and Spencer trading as NIC Hygiene in this case the tribunal determined that Mr Khan dismissal for attending a pilgrimage was discriminatory. In the problem for the employer was that it had failed to correspond with Mr Khan over his request and a Line Manager had said if he didnt hear anything it would be Ok.
  • In Fugler v Macmillan London Hair Studios a hairdresser refused a Jewish employee time off for the festival of Yom Kippur claiming that Saturday was its busiest day. However they hadn’t tried to rearrange his duties to allow him the time off. Mr Fugler’s compensation was however limited to £500 for injury to feelings as he had not booked the time off in advance.

If you are in any way concerned that one of your workplace rule, practice or procedure applied to all could disadvantage one particular group, please do talk to us.