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Monday, June 27, 2022

“Employers who ask Muslim employees to take time off during Ramadan may be indirectly discriminating,” says top Leeds lawyer

A top lawyer from Leeds said “Muslims do not get preferential treatment” during Ramadan but employers who ask workers to take time off during the holy month due to underperformance may be indirectly discriminating.

The ninth month of the Islamic calendar year, which falls around the beginning of April, sees abled-bodied Muslims around the world fasting for Ramadan.

During Ramadan, most Muslims, except for the elderly, children, those who are ill, and pregnant women, fast from sunrise to sunset, to devote themselves to their faith and become to God.

With no standardised times of sunrise and sunset, the length of the fast depends on where you are in the world and the further into summer it gets. In the UK, Muslims fast on average for around sixteen hours a day.

This results in shorter sleeping periods and earlier mornings, so devotees can begin their day with Suhoor and fajr prayers, and end with an iftar meal Isha prayers between sundown and midnight.

Mr Lunat is a partner and head of Employment Law at Ison Harrisons in Leeds.

Whilst the physical health, mental health, and spiritual benefits of fasting during Ramadan are vast, it can also be challenging for Muslim employees, especially those working in office environments.

Despite Ramadan proving to be a positive time for businesses and charitable organisations, productivity levels may decrease because of changes in a worker’s daily routine.

An expert in employment and discrimination law, Yunus Lunat, partner and head of Employment Law at the Leeds-based Ison Harrison who has over twenty-five years of experience, has provided Asian Standard with some insight into the laws surrounding fasting in the workplace.

Mr Lunat said there isn’t “preferential treatment” for Muslims who fast during Ramadan. In the UK, workers do not have an automatic right to time off to observe religious holidays.

In most cases, workers have the right to one uninterrupted break during their working day if they work for more than six hours. Mr Lunat advised that it is up to management at companies whether they grant additional breaks for prayers or not, but “requiring an employee to go on lunch at a specific time and refusal to accommodate prayers or rests without justification may give rise to an indirect discrimination claim.”

Employers are not required by law to give “preferential treatment” to those fasting.  Image: Sylwia Bartyzel.

The employment law expert said: “Accommodation for workers observing Ramadan is not a legal requirement, however, it does make commercial sense for an employer.

“A worker who is treated well and sympathetically will be more enthused about their work and is likely to stay for longer than those who are not.

“Employers are encouraged to adopt practical approaches to deal with employees observing fast during Ramadan. This includes engaging with the workforce and considering temporary arrangements such as flexible working hours and remote working.”

Mr Lunat gave a scenario where an employer concerned with the efficiency of his Muslim employees observing the fast and contemplating asking his employees to take time off could lead to indirect discrimination.

He said: “An interesting scenario was put to me by an employer concerned about the performance of his 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. Could the employer insist that any time taken off is taken as annual leave rather than unpaid leave?

“The answer to the question of whether the absences are paid or unpaid is unlikely to be of great significance and is likely a matter of contractual interpretation and custom and practice. The absences are however likely to amount to indirect discrimination.

Employers who do not give a justification for refusing adjustments to rest or prayer times may be indirectly discriminating, says Mr Lunat.

“This is because even allowing for the effect on performance; the employer would only be requiring the employees to take time off in circumstances where performance has been affected by the observance of a religious practice.”

He added: “Other similarly under-performing employees who are not of the Muslim faith and fasting would be unlikely to be subjected to a Performance Management Plan.

“Under such a scheme an employer is unlikely to impose such a requirement for under-performing employees to take time off work. Accordingly, seeking to require for employees to take leave is likely to amount to an act of less favourable treatment on the grounds of religion.”

Mr Lunat advised that employers “should avoid placing employees on a performance management plan when any poor performance is related to the observance of Ramadan.

“This is particularly important when there are no issues with performance at other times of the year. Implementing such a performance management plan could potentially expose the employer to costly direct discrimination and a less favourable treatment claim on the grounds of religion and belief.”

 

 

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