Buddy says: Careful consideration must be given to the request from this employee (“A”) to avoid potential claims of discrimination under the Employment Equality (Religion and Belief) Regulations 2003 (“the Regulations”) and the Race Relations Act 1976 (“the RRA”).

"A"’s intended trip to Pakistan is for the purposes of his/her wedding.  The request for extended unpaid leave may therefore be sufficiently connected with the employee’s religion and/or cultural tradition to give rise to a discrimination claim.  For the purposes of this advice, I am assuming that "A" is Muslim.  Marriage is an integral part of the Islamic faith and therefore the marriage ceremony itself can be seen to be a requirement of the religion.  However, the peripheral celebrations, which extend over a variable period from several days to sometimes weeks, owe their provenance to cultural tradition rather than religion.  The marriage ceremony is likely to fall within the ambit of the Regulations whereas the peripheral celebrations would fall within the RRA (as relating to ethnic origins). 

"A" may seek to argue that a refusal to allow him/her to take unpaid leave for the purpose of his/her wedding amounts to indirect discrimination on the grounds of his/her religion and/or race.  To succeed with such claims "A" would have to show:

1. A provision, criterion or practice - the Company’s refusal to allow employees to take periods of unpaid leave in excess of their contractual/statutory annual leave entitlement.
2. A disproportionate adverse effect on Pakistani people and/or Muslims – on the whole, people of Pakistani origin and/or Muslims are more likely to travel to their countries of origin to get married and that such weddings extend over a significant period in excess of their contractual/statutory annual leave entitlement and therefore the Company’s policy would mean that those employees would be unable to participate fully in the wedding ceremony/celebrations.
3. Putting "A" at that particular disadvantage – that as a result of the Company’s refusal to allow "A" to take additional unpaid leave, he/she would be unable to participate fully in the wedding ceremony/celebrations.

If the Company were to be found by a tribunal to have indirectly discriminated against "A", it could avoid liability by relying on the objective justification defence if it could show that refusing the request for additional unpaid leave was a proportionate means of achieving a legitimate aim. The legitimate aim would be the stability of the workforce and the need for adequate staffing levels.  Whether or not the Company’s refusal would be proportionate would essentially require a balancing act between "A’s" needs and the business needs.  The Company would have to show that it was necessary to protect the business needs to refuse "A’s" request for extended leave.

The important factual issues are therefore:

• Why is "A" seeking 15 days’ additional unpaid leave?  Have they already used up their contractual entitlement and now require additional unpaid leave in order to attend the wedding or does "A" wish to add the unpaid leave to the remaining contractual/statutory leave entitlement (i.e. up to 32 days’ leave). 
• How long the wedding ceremony will last?  Could "A" reasonably attend the wedding and return within the period of any remaining contractual/statutory leave?  If not, why does "A" need the additional 15 days?  If "A’s" trip is to be used to visit family and prepare for the wedding celebrations then this is unlikely to fall within the ambit of religious/cultural activities capable of protection under the discrimination legislation.
• Whether the Company could accommodate "A’s" absence during the 17 additional days’ leave?  If not, why not?
• How long could the Company accommodate "A’s" absence beyond his/her contractual/statutory annual leave entitlement?
• How does the Company deal with requests for unpaid leave from other employees for other reasons?
• Has the Company previously agreed to an employee’s request for unpaid leave in excess of their contractual/statutory annual leave entitlement?

Other claims

Unless "A" falls within one of the excepted categories (e.g. pregnant employees, whistleblowers), he/she will not be able to claim unfair dismissal (on the back of a constructive dismissal arising from the refusal to permit unpaid leave) because they do not have one year’s continuous service. 

The advice set out above is on the basis that the Company does not allow employees to take additional unpaid leave. If the Company has previously allowed other employees to take extended unpaid leave, this may give rise to a direct discrimination claim from "A" (i.e. the Company is not allowing him/her to take extended unpaid leave because of his/her religion/race).   If applicable, we would need to explore the reasons why the Company has allowed other employees to take extended unpaid leave in order to pre-empt any suggestion that the reason relates to religion or race.

Options

If having sought further details from "A", the Company considers that "A" reasonably needs the full period of leave requested in order to participate in the religious and cultural aspects of his/her wedding, it may decide to allow "A" the time off requested.  However, this may have a knock on effect for other employees who seek extended periods of leave for reasons relating in some way (however tenuous) to their religion or culture.  The Company will no doubt wish to avoid an “opening of the floodgates”.  A more sensible approach may well be to reach a compromise with "A" and offer a period of unpaid leave short of the 15 days requested.  This is of course provided the business can accommodate such prolonged absence.

Whatever decision the Company ultimately reaches, it is crucial that the company is seen to have given careful consideration to the request.  Any discussions with "A" should therefore be recorded and the company’s decision and the reasons for it confirmed to "A" in writing.