Avoiding unlawful discrimination when you make a decision relating to workers’ time off

 You must avoid unlawful discrimination when you make a decision about a worker’s time off. Decisions about time off might range from who takes their holiday when to how you record worker’s absences.

Visit the Core guidance to make sure you know what equality law says you must do as an employer.

This section of the guide covers the following:

  • Avoiding direct and indirect discrimination

The specific age exception allowing different levels of annual leave based on length of service of up to five years

  • Making reasonable adjustments to remove barriers for disabled people and avoiding discrimination arising from disability
  • Considering requests for time off relating to a worker’s religion or belief
  • Considering requests for time off relating to a worker’s gender reassignment
  • Pregnancy-related absences
    • sickness absence
    • ante-natal care
  •  Maternity, paternity and adoption leave

Some types of leave, such as holiday, count as a benefit and are treated in the same way as pay. You can read more about what this means in the Equality and Human Rights Commission guide: What equality law means for you as an employer: pay and benefits.

Avoiding direct and indirect discrimination

If you:

  • refuse someone’s request for leave because of a protected characteristic, or
  • pay some people more than others during their time off because of a protected characteristic, or
  • give some people more leave than others because of a protected characteristic

this is likely to be direct discrimination, unless employment law or equality law specifically allows you to do this (as it does with maternity leave, for example).
If you:

  • say that everyone has to take leave at a particular time of year, or
  • set conditions on when someone qualifies for extra leave

this may have a worse impact on a person with a particular protected characteristic and others with that characteristic than it would have on people who do not have the characteristic. Unless you can objectively justify what you are doing, this may be indirect discrimination. 

Making reasonable adjustments to remove barriers for disabled workers and avoiding discrimination arising from disability

 Employers sometimes use workers’ sickness absence records to help them make decisions about things like:

  • promotion
  • bonuses
  • redundancy
  • references.

If you treat time off taken by a disabled person which relates to their disability in exactly the same way as you treat sickness absence taken by a worker who is not disabled, this may result in the disabled person being treated worse than another worker because of something arising from their disability.

For example:

A worker who is a disabled person requires a day off every month for physiotherapy related to their condition. The employer records these days off as sickness absence. When the employer is deciding which staff to pay an annual bonus to, one of the tests is having had fewer than five days’ sickness absence in the year. The disabled person is therefore not eligible for the bonus. They have been treated worse than other workers because of something arising from their disability (the need to take time off for physiotherapy). To avoid this being unlawful, the employer must be able to objectively justify it.

Instead of trying to objectively justify the application of the rule in this way, the employer decides to record the absence related to the worker’s disability separately from ordinary sickness absence. The employer excludes these days from the worker’s sickness absence record when working out eligibility for the bonus. Recording the leave separately like this would probably be a reasonable adjustment.

Once you know that a worker comes within the definition of a disabled person avoid:

  • direct or indirect discrimination because of disability, or
  • discrimination arising from disability

and to make sure that you have complied with the duty to make reasonable adjustments you should:

  • Record the worker’s disability-related time off separately from general sick leave. This will mean that you are not calculating bonuses or making other pay or employment decisions in a way that unlawfully discriminates against them.
  • Stay in touch if someone is absent for a long period to find out how they are and to tell them what’s happening at work (though make it clear you don’t expect them to come back to work before they are ready).
  • Think about a plan for their return to work, for example, arranging for them to start work again gradually or to do some work at home before they come into the office, if this is possible in their job.
  • Consider reasonable adjustments with them and, if necessary, use expert advice to work out what reasonable adjustments can be made for when the worker is ready to return to work. If a change is reasonable, you must make it.

You do not have to pay sick pay beyond what you normally pay just because the person’s time off is disability-related. But it may be a reasonable adjustment to:

  • extend their sick pay
  • offer unpaid ‘disability leave’, or
  • allow them to take the extra time off as annual leave.

If the reason the worker is absent is because of a delay in implementing a reasonable adjustment that would enable the worker to return to the workplace, maintaining full pay may well be a further reasonable adjustment for the employer to make.

For example:

A woman who has a visual impairment needs work documents to be enlarged. Her employer fails to make arrangements to provide her with these. As a result, she has a number of absences from work because of eye-strain. After she has received full sick pay for four months, the employer is considering a reduction to half-pay in line with its sickness policy. It is likely to be a reasonable adjustment to maintain full pay as her absence is caused by the employer's delay in making the original adjustment.
You could also change the targets expected of someone so that they have an equal chance of earning bonuses.

For example:

A worker in sales takes every Thursday afternoon as unpaid leave for a disability-related reason. As a reasonable adjustment, their employer reduces their sales target to reflect their absence. Their team’s target is also reduced by a proportionate amount.

The specific age exception allowing different levels of annual leave based on length of service of up to five years

Equality law allows you to make a distinction between workers in pay and benefits based on length of service, including how much annual leave they get.

You can give workers with less than five years’ service different holiday entitlements to those with more than five years without having to objectively justify this.

For example:

To encourage workers to stay with them for more than two years, an employer gives workers an extra day’s paid annual leave for each complete year of service, up to five years. The exception allows the employer to do this without having to objectively justify the practice. This applies even though it is harder for younger employees to qualify for the extra leave and is therefore, on the face of it, indirect age discrimination against the younger workers.

You can work out length of service in one of two ways:

  • by the length of time that the employee has been working for you at or above a particular level, or
  • by the length of time the employee has been working for you in total.

If you use length of service of more than five years to award or increase a benefit, this falls outside the exception.

But there is a further difference: you may still be able to use length of service of more than five years to make decisions about holiday entitlement if you reasonably believe that using length of service in this way fulfils a business need. You may believe it rewards higher levels of experience, encourages loyalty, or increases or maintains your workers’ motivation.

This is a less difficult test than the general test for objective justification for indirect discrimination. However, you still have to have evidence to support your belief that it did fulfil a business need. Examples of the sort of evidence you could use include:

  • monitoring
  • staff surveys
  • individual or group discussions with staff.

For example:

An employer wants to give an extra five days’ annual leave to workers after ten years’ service. The employer can only do this if they reasonably believe this practice fulfils a business need. 

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