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Working Hours

Complaints that an employer’s requirement for work on Saturdays or Sundays indirectly discriminates against certain employee groups on grounds of religious belief have been considered by a number of tribunals:

  • In Williams-Drabble v Pathway Care Solutions (ET case 2601718/04) the tribunal ruled that the imposition of a permanent work rota requiring occasional Sunday shifts indirectly discriminated against an active Christian whose church held only one service at 5pm (in accepting the job six months earlier, Mrs W-D had advised the company of her faith and that she was unable to work on Sundays). Mrs W-D resigned when told that the change was non-negotiable.

The tribunal also held that the discrimination amounted to a breach of the implied duty of mutual trust and confidence and that Mrs W-D’s claim for constructive unfair dismissal should also succeed.

  • In James v MSC Cruises Ltd  (ET case 2203173/05) the tribunal ruled that a requirement for Saturday working indirectly discriminated against Seventh Day Adventists whose faith requires them to observe the Sabbath. MSC Cruises marketed and sold holidays on cruise ships and required Saturday morning working to cater for customer needs. This was a contractual requirement and staff were rostered for Saturdays about once a month.T

The tribunal held that this requirement, although discriminatory, was founded in a “compelling business case”.

  • Edge v Visual Security Services (ET case 1301365/06) covers similar ground. Edge was a practising Christian whose wish not to work Sundays had been flagged up at interview. Six months later VSS transferred him to a site where Sunday working was required; he complied under duress for about three months while the company trained another operative to take these duties. Ultimately, after arguments about time off for personal and religious reasons, he was dismissed.

The tribunal held that VSS had a legitimate aim in requiring Sunday working, but that its failure to find alternative solutions because they were “simply too much trouble” meant that it could not demonstrate proportionality.

  • The employer in Estorninho v Zorans Delicatessen (ET case 2301487/06) was also unable to show that the indirect discrimination involved in requiring a practising Roman Catholic to change his working hours to include an additional shift on Sundays was proportionate. In particular, there was a failure to “discuss the matter with the other chef or look at other ways of covering Sundays”.

 

  • Fugler v Macmillan London Hair Studios (ET case 2205090/04) illustrates similar points in relation to Judaism: in a year in which Yom Kippur fell on a Saturday the employer should have considered alternatives to its usual policy of discouraging holiday requests for Saturdays, which was accepted by the tribunal as the salon’s busiest day (demonstrating a legitimate aim for the hours of opening).


EFB comment

Provided that the working pattern is clearly required for sound business reasons (such as efficiency, customer demand, coverage etc.) employers should have little difficulty in showing that this is a legitimate aim. It is however equally important to be able to demonstrate that other potential solutions were properly considered and that the working hours were not just unilaterally imposed, especially if an employee has previously expressed concerns based on a religious belief.