I am a HR Manager at a company which provides emergency repair services. One repair engineer has to be available every day, including on public holidays. An engineer has complained about his annual leave request for Christmas Day being refused – but the other engineers had already booked the day off. He is a devout Christian and claims that he should be given preferential treatment as it is a day of worship. I’m afraid he will bring a discrimination claim. How do I handle it?

For many, Christmas is a time of relaxation and enjoyment which they expect to receive as a day off work. However, our starting point should be to consider how the 25th of December is viewed in the cold gaze of the law.

Statutory and contractual positions ⚓︎

Christmas Day is a “public” holiday in Northern Ireland and England & Wales. This means that it is a holiday derived, over time, from our common law. This is the difference with “bank” holidays, which originate in statute or by royal proclamation. Regardless, the employment law position is clear – employees have no right to either public or bank holidays as time off unless their contract states otherwise. Therefore, you will have to check the contract of employment, which should set out the holidays the employee will receive, and if he can be required to work on a public holiday. Given the nature of your business, it is very likely that this power is included.

The risk of a discrimination claim under FETO ⚓︎

With the statutory and contractual positions defined, you can then consider the risk of a discrimination claim. As you know, it is unlawful to treat an employee less favourably on the grounds of their religious belief under the Fair Employment and Treatment (NI) Order 1998 (“FETO”). Discrimination can be direct or indirect. In this case, there is a rota which applies to all of the repair engineers equally. It is very unlikely that the employee could evidence direct discrimination against him unless he has been deliberately made to work on Christmas Day because he is a Christian.

Indirect discrimination ⚓︎

However, indirect discrimination can occur where a “requirement or condition” is applied equally but has the effect that persons of one belief who can comply with it are considerably smaller than those of another belief, in a manner which is unjustifiable irrespective of the employee’s belief and is detrimental. Your refusal of an annual leave request is a “requirement or condition”, meaning that we must consider if it is justifiable irrespective of the employee’s belief.

Whilst there is no right to reasonable adjustment for religious belief, you should try and accommodate employees with particular religious requirements obligations on particular dates. In England & Wales, the Equality and Human Rights Commission have produced helpful best practice guidance:

“A worker may request annual leave for a religious occasion or to visit family overseas. To avoid discrimination, employers should seek to accommodate the request – provided the worker has sufficient holiday due to them and it is reasonable for them to be absent from work during the period requested.”

In this case you could decline the employee’s demand. You have a genuine operational requirement for an engineer to work on Christmas Day, which is justifiable irrespective of the employee’s religious belief. Additionally, giving preferential treatment to a Christian employee could constitute direct discrimination against other employees of different or no belief. You can exercise your discretion to continue to refuse, or seek to re-arrange the leave dates with the other engineers to try and accommodate him.

Such cases are extremely fact sensitive and must be handled carefully to navigate the risk of claims, breakdown of relations and reputational damage. You should always seek expert legal advice.