First published in LexisNexis PSL, 14 September 2017.
Nicholas Lakeland examines some of the major Jewish holidays and offers practical advice to employers dealing with requests during these periods.
What are Rosh Hashanah, Yom Kippur and Sukkot and how long do they last?
Rosh Hashanah is the Jewish New Year and commemorates the creation of the world. The festival begins at 6.49pm on Wednesday 20 September 2017. The festival ends at 6.45pm on Friday 22 September but is immediately followed by the Shabbat, which is the seventh day of the week and the day of rest.
Yom Kippur, the Day of Atonement, is the holiest day of the Jewish year and requires atonement (repentance) for ones sins. The festival and fast begin at 6.27pm on Friday 29 September 2017. The festival and fast end at 7.30pm on Saturday 30 September 2017.
Sukkot, the Feast of Tabernacles, marks the end of harvest times and commemorates the exodus (the freeing of the Israelites from slavery in Egypt) and the people’s dependence of the will of God. The festival begins on Wednesday 4 October at 6.17pm 2017. The festival ends on Thursday 12 October at 6.57pm 2017.
The final day of the festival is known as Shemini Atzereh (literally the eighth day) and is followed the very next day by the festival of Simchat Torah, which is followed by Shabbat.
Each year the dates change because the Jewish calendar is a lunar calendar so Gregorian calendar dates are different.
What considerations do they raise for employers?
Employers need to be aware of their obligations under the Equality Act 2010 (EA 2010). Religion or belief is one of the nine protected characteristics protected under EA 2010. Under EA 2010, s 10, religion or belief is defined as:
religion means any religion and a reference to religion includes a reference to a lack of religion
belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief
in relation to the protected characteristic of religion or belief:
a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief
a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.
It is unlawful for an employer to discriminate directly or indirectly. Directly would be treating someone unfavourably because of a protected characteristic. Indirect discrimination is when an employer’s practices, policies or procedures disadvantage people due to a protected characteristic (unless an employer can show an objective justification).
It would still be considered discrimination if an employer treats an employee less favourably because of a religion or belief of someone with whom the employee associates — for example, an employee treated less favourably because her husband is Jewish. It would also be discriminatory if an employee perceives that an employee is of a certain religion — for example, even though an employee is a Sikh, the employer thinks the employee is Muslim.
Employers need to be careful, therefore, to not discriminate against someone directly or indirectly due to their religion or belief. An example of direct discrimination would be denying someone a promotion or refusing to train someone because of their religious belief. An example of indirect discrimination would be changing an important meeting to a Friday evening or indeed one of the festival days, which the employer is well aware an employee cannot make as they are Jewish and finish early on Friday (unless of course the employer can give a legitimate objective justification for the change of meeting time).
If an employee does claim direct discrimination, they will have to show they were treated less favourably than a real or hypothetical comparator whose circumstances were not different to theirs, as stated under EA 2010, s 23. An example is the case of London Borough of Islington v Ladele [2009] IRLR 154, in which a Christian registrar (Ladele) refused to carry out civil partnership duties on behalf of the council as it was against her religious beliefs. The council took disciplinary action against her and found her conduct conflicted with their equality and diversity policy. The employment tribunal held that the comparator in this case would be another registrar who refused to carry out the civil partnership
duties who had hostility to the concept of same sex relationships which was unconnected to any religious belief. Ladele’s direct discrimination claim failed as the comparator employee would have also been disciplined.
Employers therefore need to be aware of the two types of discrimination, and even train their employees to make sure such discrimination is not carried out in the workplace between employees. Employees should also be told at the beginning of their employment that they should discuss their religion or belief with the HR department so that they are aware, in advance, of any days that the employee will need to take off as holiday or any other requirements that are mandatory and connected to their religion or belief.
The advisory, conciliation and arbitration service (ACAS) provides information in relation to employers and employees on all aspects of employment law. They have a specific guide called ‘religion or belief and the workplace’ which would be helpful for all employers/employees to read. It has useful guidance to keep things fair and equal for everyone and focuses on topics such as recruitment and retaining good staff.
Would you advise employers to have a policy dealing with religious observance?
It is definitely advisable that all employers have an equal opportunities policy which addresses the avoidance of discrimination at work to make sure all employees are aware. It would explain that religion or belief is a protected characteristic and that the policy would apply to all aspects of employment. The policy may also state the consequence if anyone is found to be in breach of the policy, ie disciplinary action.
A non-contractual staff handbook would also be helpful in making sure all the workplace policies and procedures are easily accessible. The equal opportunities policy could be part of this handbook.
It is considered good practice under ACAS to make sure employers consult with their employees to see if anything reasonable and practical can be done to help employees meet the ritual requirements of their religion. This can be put in the handbook if necessary.
How would you advise employers to deal with requests for time off over this period?
Employers should be aware of the importance for someone who is Jewish to have time off over this period. As the ACAS guide on religion and belief states:
‘A worker may request holiday in order to celebrate festivals or attend ceremonies. An employer should sympathetically consider such a request where it is reasonable and practical for the employee to be away from work, and they have sufficient holiday entitlement in hand.’
It is therefore advisable that employers are prepared in advance, and their employees have requested for holiday (if not working for a Jewish company) in time so that employers can get cover if necessary. It would be discriminatory to not allow such requests unless the employer can justify it with a reasonable explanation.
What other issues may arise as a result of the observance of Rosh Hashanah, Yom Kippur and Sukkot?
Employers need to be conscious that this can be an intense period of religious activity for Jewish employees who will therefore have the added stresses brought on by the preparations that are required in preparing for the festivals as well as celebrating them.
An employer would be well advised to invest some time in understanding how much time their Jewish employees will be spending away from work (usually the time is booked off as holiday well in advance of the festivals). Employers also need to be also aware that as in most religions there are varying degrees of observance as well as slightly differing customs as between Jewish employees of differing origins and need to understand that a one size fits all approach is unlikely to be an acceptable approach.
