As the festival of Ramadan draws to a close for another year, a leading employment lawyer is calling on employers to work closely with Muslim employees to explore all options to avoid performance related issues during the religious festival.
Yunus Lunat, head of employment law at West Yorkshire law firm Ison Harrison is encouraging business owners with Muslim staff to work out practical solutions to ensure individual performances in the workplace don’t have a negative impact of productivity due to the strictly observed fast conditions of Ramadan. He also suggests that a more collaborative approach can also avoid running the risk of discrimination accusations.
Mr Lunat said: “An interesting scenario was put to me by an employer concerned about the performance of his Muslim employees observing fast during Ramadan. Due to a perceived dip in performance in their required roles, the employer was contemplating asking these employees to take time off but the issue was whether it should be unpaid leave, time off in lieu or taken as paid annual leave. Could the employer insist that any time taken off is taken as annual leave rather than unpaid leave?
“Whether these absences were paid or unpaid is insignificant. The absences are however, likely to amount to indirect discrimination. 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 observance of a religious practice.”
Mr Lunat points out that any 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. Seeking to impose the requirement for employees to take leave is likely to amount to an act of less favourable treatment on the grounds of religion.
Commented Mr Lunat: “This would in fact amount to direct discrimination which cannot be justified by the employer and as such would not be able to rely on the impact on performance.”
Mr Lunat added that an employee who requests leave in such circumstances for fear of work performance being adversely affected presents the ideal solution to employers, saying: “This would appear to be the best solution for the employer, to grant leave. On the other hand, a refusal to grant leave to enable an employee to observe a religious festival is likely to amount to indirect discrimination on the grounds of religion. An employer would be required to justify his refusal on objective grounds.
“I would encourage employers to adopt a practical approach to deal with staff members observing fast during Ramadan. This includes actively engaging with the workforce which may involve considering temporary arrangements such as flexible working hours and remote working.”