Waheed Rehman gets legal advice this week on whether he has a case for constructive unfair dismissal against his employers who have refused him time off work to make his annual pilgrimage to Saudia Arabia.

The question:
“I’m currently employed by a PLC and have requested for three weeks holidays to be used for my annual pilgrimage to Saudi Arabia. My request was refused on the grounds that one member is off sick and there is another member who also wants to take time off for medical treatment for her children.

“However I explained to them that the absence of this person will not affect my role as it has got nothing to do with my work. I sat down with my manager and explained to him that somebody has to cover my two days work while I am away. But he refused to give me time off as he was not willing to pass this work to somebody else. Currently there are eight members in the team.

“They have previously allowed another member of the department to take four weeks off and passed the work to another colleague in their absence. As a result of this I resigned from my role and gave them four weeks notice. Currently I am serving my notice period. Do the reasons given by my company sound reasonable?”

Waheed Rehman

The answers:
Nicholas Snowden, senior solicitor at Clarkslegal LLP

Whether or not you have strong potential claims of constructive dismissal and/or unlawful discrimination on the grounds of religion is difficult to assess based solely on a summary of what has happened, as a detailed examination of all the facts is required. However, at first glance, these appear to be the most likely claims you might have.

You are right that your employer should act reasonably. As regards constructive dismissal, such a claim will only be possible if you have at least a year’s service. If you have a year’s service, your employer’s decision to refuse you leave needs to be looked at in the round, to establish whether your employer has breached the implied contractual term of mutual trust and confidence. Constructive dismissal is a difficult claim to win. However, you will have a chance of succeeding if you can show that your employer did not have a good reason to refuse your request for leave or that the refusal was tainted by unlawful discrimination.

In terms of discrimination, there is no service requirement. As evidence of direct discrimination is usually hard to find, the Employment Tribunal will infer discrimination if you can show facts which, in the absence of adequate explanation, could lead to a finding of unlawful discrimination. Your evidence about other employees being allowed leave in similar circumstances would be relevant at this stage. The burden would then be on your employer to prove it did not unlawfully discriminate. Again, this would require your employer to show that there was a good business reason for the refusal.

Please note that one way of obtaining information from your employer, which may help your case, is to send a questionnaire. If you decide to do this, I recommend you seek legal assistance with the drafting of the document to maximise its impact.

Some of the factors which would be taken into account in deciding whether you employer has acted reasonably in your case, would be:

• What your contract of employment says about the notice you are required to give before you can take annual leave




• The notice of annual leave you actually gave your employer in this instance




• Whether the employer has treated other staff more favourably in similar situations




• Whether your manager could reasonably have arranged cover for the two days work to which you have referred




• Whether it was reasonable for your employer to take into account the absence of the two other members of staff in refusing your request for leave

Finally, in order to bring either of the claims to which I have referred, you need to raise a grievance first. If your resignation letter mentions the reason for your resignation, even though you may not have described the letter as a grievance, your employer may be under an obligation to treat it as such. However, for the avoidance of doubt and to ensure your religious discrimination claim is not ruled inadmissible by a Tribunal, I would recommend raising a grievance in writing with your employer. Your employer then has 28 days to deal with the grievance before you can commence an Employment Tribunal claim.

There are time limits for presenting your claims. These are:

• six months from the effective date of termination of your employment, for unfair dismissal


and


• six months from your employer’s decision to refuse your request for leave, for the discrimination claim

These time limits are normally three months, but are automatically increased to six months by virtue of you submitting a grievance.

I recommend that before taking further action, you obtain specific legal advice based on all the facts from a solicitor or the Citizens Advice Bureau. You may also want to check your household insurance policies to see whether they include cover for legal expenses. If they do, make an application for cover early, as the process takes a little time and the insurers will only pay legal fees incurred after they have accepted your insurance claim.

Nicholas Snowden can be contacted at nsnowden@clarkslegal.com

Helen Badger, employment law expert, Browne Jacobson

Under the Employment Equality (Religion or Belief) Regulations 2003, it is unlawful to treat any member of staff less favourably on the grounds of their religion or belief.

One implication of this legislation is that employers need to give sympathetic consideration to employee requests for annual leave relating to their religion or belief. Failure to do so could amount to unlawful discrimination.

This does not mean that an employer has to agree to all requests for leave, however. What is crucial is that employers consider the request seriously, and balance this against any possible detrimental impact on the business of allowing the request.

In your particular case, as you and your employer appear to have sat down and discussed your request in detail, it would seem on the face of that due consideration has at least been given.

There remains the possibility that the refusal of your request for three weeks’ holiday for your annual pilgrimage could amount to discrimination, given that a previous request from another employee – for four weeks – was granted.

However, it is difficult to judge without the full facts as to whether the difference in your roles or workloads might be such that granting your request would genuinely be more detrimental to the business than granting your colleague’s. If so, the employer may be able to objectively justify the two opposing decisions to an Employment Tribunal.

Were you to claim, then this is ultimately what the Tribunal would consider; the outcome would depend on whether a tribunal was persuaded by the employer’s arguments as to why the request was rejected.

You do not state how long you were employed by the company, but should note that if for more than 12 months, you may also be able to claim unfair dismissal on the basis that your employer’s conduct forced you to resign, entitling to treat yourself as dismissed (i.e. constructive dismissal).

In terms of next steps: as a consequence of legislation introduced last year, in order to pursue such a claim at the employment tribunal, you must complain in writing to the employer within three months of their refusal of your request. Allow a period of 28 days for the employer to respond before then lodging a claim. You then have a further period of three months (taking you to six months from time of the refusal) to lodge your claim at the employment tribunal.

The employer may ask for your agreement to deal with your written complaint by way of written representations, or invite you to attend a meeting to discuss your grievance. If they do invite you to a meeting you should make sure you attend, and be aware that you may be accompanied to this meeting.

Helen can be contacted at: hbadger@brownejacobson.com
***
HRZone highly recommends that any answers are taken as a starting point for guidance only.

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