***Article updated May 2019***
We are currently running a Ramadan In The Workplace: In Focus series of blog posts. Here we ask “Can an employer require Muslim staff observing Ramadan to take time off?”
Yunus Lunat recalls an interesting scenario whereby an employer concerned about the performance of Muslim employees observing fast. The employer was contemplating asking the employees to take time off but the issue was whether it should be unpaid leave, time off in lieu or taken as annual leave.
Can employers insist that time taken off is taken as annual leave, rather than unpaid leave?
Whether the absences are paid or unpaid is unlikely to be of significance and is simply a matter of contractual interpretation, custom and practice.
However, if an employee is required to take time off during Ramadan then this is likely to amount to indirect discrimination; because even allowing the effect on performance; the employer would be requiring the employees to take time off in circumstances where performance has been affected by observance of a religious practice.
Other similarly under-performing employees who are not Muslim and fasting would be unlikely to be forced to take time off, rather would be subjected to a Performance Management Plan if their performance was consistently poor. Under such a scheme an employer is unlikely to impose such a requirement for under-performing employees to take time off work.
In addition, seeking to impose the requirement for employees to take leave is likely to amount to an act of less favourable treatment on the grounds of religion and belief.
Employers should also avoid placing employees on a performance management plan when any poor performance is related to the observance of Ramadan, especially when there are no issues with performance at other times of the year. Doing so could potentially expose the employer to a costly direct discrimination and less favourable treatment claim on the grounds of religion and belief.
This could amount to direct discrimination which cannot be justified. Therefore the Employer would not be able to rely on the impact on performance.
What if an employee has requested leave during Ramadan?
This would be the best solution; to agree and grant leave. A refusal to grant leave to enable an employee to observe a religious festival can amount to indirect discrimination on the grounds of religion. An employer would be required to justify his refusal on objective grounds.
Employers are encouraged to adopt practical approaches to deal with employees during Ramadan. This includes engaging with the workforce, and considering temporary arrangements such as flexible working hours or remote working.
For further information, please contact our employment department, Partner and Head Yunus Lunat on 0113 284 5023 or alternatively email yunus.lunat@isonharrison.co.uk.
