Recent weeks have seen a good deal of tabloid derision over so-called 'political correctness gone mad', following stories about public sector bodies apparently 'banning' aspects of traditional Christmas celebrations.

Lambeth Council announcing the switch-on of its “Winter Lights” was swiftly followed by local authorities allegedly banning such stalwarts as Christmas carols and even the use of 'B.C.'! The reasoning behind these moves was said to be a concern not to offend local residents from non-Christian communities.

For businesses, however, there looms a thornier and more real prospect of religious discrimination as the countdown to Christmas begins.

The supposedly straightforward matter of shutting down the office, or that of rostering staff for the Christmas period, can prove to be fraught with tension and the potential for legal liability.

Faith in the law

The Employment Equality (Religion or Belief) Regulations 2003 outlawed discrimination at work on the grounds of religious faith or belief. The Regulations oblige employers to give more consideration than was previously required to employees' religious practices, bolstering legal safeguards to the right to equality in the workplace; rights which were initially ushered in by the Race Relations Act 1976 and strengthened by the EU Equal Treatment Framework Directive 2000.

The aim of the regulations is laudable, but not without its complications. Whilst Christians have traditionally been able to combine work with religious observance – Sundays, Christmas and Easter generally being non-working days – this is not necessarily so for those of other faiths working in Britain.

Christmas: fair?

Festivals relating to non-Christian faiths in the UK – the Islamic festival of Eid, for example, or Diwali in Hinduism – are not likely to fall at a time when their devotees are not normally required to work.

So how can employers strike a fair balance between business needs and employees' religious practices? Is it fair that those who do not celebrate Christmas are in effect 'prevented' from working, yet required to take annual leave to celebrate their own religious festivals? Is it still acceptable for an office to be closed down over Christmas?

It would be a Scrooge-like employer who expected staff to take Christmas Day out of their annual leave. And whilst most employers are sympathetic to requests for leave for religious celebration, is the same treatment being afforded to non-Christian employees, who are usually required to take this out of their annual leave entitlement?

The situation is no less complex for organisations which do not close over Christmas – for example, airports, public transport, hospitals and emergency services. Having rightly granted Hindu or Muslim staff paid holiday over Diwali or Eid, should Christmas be automatically given off to staff of Christian background? Giving Christian staff priority over other faiths for time off over Christmas would be by its nature discriminatory.

The issue is further complicated by the emotive nature and cultural sensibilities that surround religious matters. So how can employers comply with anti-discrimination legislation, and equally importantly, be seen to be even-handed to all staff, irrespective of religious background?

Neutrality is the best policy

Companies' mechanisms for rostering Christmas cover should be as neutral as possible: a first-come-first-served basis for booking Christmas holidays, for example, would be perfectly non-discriminatory, as would asking for volunteers or drawing lots to cover Christmas shifts.

Another helpful measure might be to add to employees' annual leave a certain number of days for the celebration of religious festivals. This would enable staff from all faiths to take the same amount of time to celebrate religious occasions, allowing Christian employees to opt for Christmas and/or Easter, Hindus Diwali, Muslims Eid, etc.

None of which overcomes the problem of the Christmas shutdown. Where a place of work is closed on Christmas Day, an employee is obviously unable to work, regardless of any desire to celebrate Christmas. But if some staff are granted days off for religious celebration at another time in the year, does this discriminate against Christian staff?

There is no straightforward answer. The new regulations do not actually provide for additional time off for religious practices, but employers are expected to accommodate requests where reasonable and practical. Each employee request must ultimately be judged on its merits, and discretion exercised as appropriate.

One crucial point here: if the result of a seasonal shutdown is that non-Christian employees have insufficient holiday remaining to take time off for their own religious festivals, this could amount to indirect discrimination.

It is therefore essential that, in the event of a Christmas closedown, employers remain sympathetic to requests for leave relating to employees’ faiths at other times. If this requirement is observed, and the employer has good reason for closing at Christmas – for instance, lack of work or adequate supervision – then an employer should be able to justify any difference in treatment between employees over religious holidays.

Finally, in keeping with the spirit of the new regulations, employers should ensure that they are as informed as possible about any requests for religious leave, and why these are being made. Keep in mind that some religious festivals are determined by the lunar calendar, and so fall at different times each year. Staff may not know too far in advance the dates they will wish to take as holiday later in the year.