My Employment Law Analysis for Lexis Library:The festival of Diwali—what employers need to know
The festival of Diwali—what employers need to know
Employment analysis: Should employers have a workplace policy covering religious observance? Should Employers have a workplace policy covering religious observance? In the context of Diwali 2018, Pranav Bhanot, Solicitor at Wiseman Lee LLP, advises employers on what they should take into consideration and what action is required.
What is Diwali? How long does it last?
Diwali is celebrated by Hindus, Sikhs, Jains and some Buddhists across the world. The stories and historical events remembered on the festival of Diwali differ between the four religions, nevertheless, the underlying theme of the festival is lightness over darkness, goodness over evil and knowledge over ignorance. The festival is celebrated over five days and commenced on 5 November 2018—though Diwali itself falls on Wednesday 7 November 2018.
With approximately 1.5 million Hindus, Sikhs, Jains and Buddhists in the United Kingdom, it is possible that you will employ individuals who will be celebrating Diwali this year.
What considerations does it raise for employers?
Compared to other religious festivals, Diwali observances are unlikely to result in significant disruption to the workplace. One of the reasons for this is because many families opt to celebrate the festivities as the sun sets.
Nevertheless, as the festival is celebrated in a variety of ways, some employees may request to take time off for religious observance.
The starting point is that employers are not legally obliged to grant requests for leave on religious grounds, but some flexibility can improve staff morale and provide an opportunity to educate a work force about the festival.
Employers are reminded that, ‘religion or belief’ is one of the nine ‘protected characteristics’ covered by the Equality Act 2010.
If an employer prevents an employee from taking time off, there is a risk that this could amount to discrimination unless the employer can show the refusal is objectively justified. Therefore, while there are no rights which guarantees employees time off for religious observance, where time off is requested for a genuine religious reason, where possible, employers should seek to accommodate the request.
A small percentage of observers may choose to fast on Diwali. Employers should be mindful of any employees who are fasting, particularly where the method of work is labour intensive.
Some observers may choose to mark the festival by opting to keep a vegetarian only diet on Diwali. Therefore, where lunch is provided at workplace canteens, ensuring there is a vegetarian option would be helpful.
Reviewing financial targets
Occasionally, on the day after Diwali (known as the Hindu New Year), business owners and some employees may use the day to consider their financial affairs and set budgets for the coming year. Therefore, this could result in employees discussing their financial targets with their employers.
Would you advise employers to have a policy covering religious observance? If so, what would it cover?
For the sake of clarity, employers may opt to have a workplace policy covering religious observance which is objective, justifiable, transparent and should be applied fairly.
The policy would cover the following:
• who it applies to
• applying for leave—the procedure for applying for leave for the observance of religious holidays. It may be that this reflects the annual leave policy
• dietary requirements—some religions and beliefs have specific dietary requirements. If employees are permitted to bring their own food to the workplace, they may need to store or heat it separately from other food. Employers may set out a practical and inexpensive solution to keeping food separate
• prayer breaks—an employer may set out how it chooses to respond to requests for prayer breaks at certain times of the day or on certain festivals
• prayer rooms—an employer may choose to set out how they will allocate spare rooms in the work place for the purposes of prayer
• dress codes—the policy could set out details about the work place requirements regarding dress codes and the extent to which dress codes can conform to religious requirements
How would you advise employers to deal with requests for time off over Diwali?
Employers do not have to automatically agree to provide time off over Diwali. However, employers should consider the request and be sympathetic to such requests where it is reasonable and practical for employees to be away from work.
If an employee can use his or her statutory or contractual paid annual leave for Diwali, it may be difficult to show that the refusal is proportionate unless there is some good reason why holiday cannot be taken at that particular time (for example, the commercial requirements of the business or whether the employee has insufficient holiday entitlement).
The size and nature of the organisation will be relevant. A larger employer may have a greater scope for covering absence compared to smaller organisations.
As an alternative to using annual leave, employers could assist employees with taking time off for Diwali or other religious festivals by offering a flexi-time arrangement, which is one-off discretionary time off to be made up at a later time or offer unpaid leave. Whichever option is used, it should be agreed between the employer and employee.
If an employer cannot accommodate a request for leave for religious observance, it would be sensible to provide the employee with a compelling business reason for refusing such a request.
Are there any other points worth mentioning here?
It would be good practice for employers to create a calendar setting out the dates for religious festivals which can then be circulated to HR teams and line managers. This would allow for forward planning and ensure there is adequate workforce cover during religious festivals should employees request time off for leave.
Finally, employers should note that dates for religious festivals may be aligned to the lunar calendar and so dates change from year to year.
Pranav Bhanot is a solicitor and mediator who specialises in contentious and non-contentious employment matters and assists his clients with legal matters relating to their workforce. Bhanot’s clients have included multinational companies, the NHS, national and local government and technology start-ups. Bhanot is co-chair of the India-UK Legal Exchange Programme. Bhanot is also an executive committee member of the Hindu Lawyers Association.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This article was first published on Lexis®Library Employment on 9 November 2018.