In what has been hailed as a landmark decision, an industrial tribunal in the UK ruled recently that a Muslim bus cleaner, dismissed after taking what his employer claimed was unauthorised leave, was unfairly discriminated against on religious grounds
by Francis Wilkins
n what has been hailed as a landmark decision, an industrial tribunal in the UK ruled recently that a Muslim bus cleaner, dismissed after taking what his employer claimed was unauthorised leave, was unfairly discriminated against on religious grounds. The question the case raises –of what constitutes unfair discrimination on religious grounds – is one that employers, HR staff, employment and industrial relations lawyers and others will increasingly need to consider.
The employee in the case had requested six weeks leave to make the pilgrimage to Mecca, a journey Muslims are required to undertake if they are able. The employer did not respond either to his verbal or written request; the employee’s line manager, however, told him that if he received no response he should just go. On his return, the employee was told his absence was unauthorised and was dismissed for misconduct.
The employee subsequently brought an action under regulations introduced in December 2003 that protect employees from discrimination on religious grounds. In the first successful case brought under the new regulations, the tribunal found the dismissal to be unfair and that the employee had been discriminated against.
As commentators have noted, however, the decision may not be quite the landmark some have claimed because it appears religious issues were not at its heart. The employer did not refuse the application; he simply did not respond to it. The line manager, however, supported the request. Under the circumstances, it would be difficult to make the case that the employee’s absence was unauthorised – but that is obvious without reference to the background or the reason for his requesting leave.
Regulations designed to protect employees against religious discrimination should be sufficiently flexible to apply to a broad range of religious practices. It is, however, in addressing the fractured relationship between Western culture and Islam that they are likely to prove most valuable. Since September 11, the need for those of all religions and none to understand one another has never been greater. Much more than ‘religious tolerance’ is needed, and more than regulatory protection. The rule of law requires an effort that goes beyond the realm of law.
