A Jewish employee dismissed after refusing to attend work on the Jewish religious holiday, Passover, was successful in his claim for indirect discrimination in the workplace, being awarded around £26,500 in compensation.
Facts of the case
Mr Bialick worked as a legal executive for Manchester-based law firm NNE Law Limited. Tensions in the employment relationship began to appear in March 2020, as concerns regarding Covid 19 ramped up in the UK. As a response to the Prime Minister’s speech imposing restrictions on 23 March 2020, Mr Bialick did not attend NNE’s offices the following day. On his employer’s instruction, he did physically attend the office on 25 and 26 March 2020, however Mr Bialick fell ill and received isolation notes covering the period up to 8 April 2020.
Mr Bialick is also a practising member of the Orthodox Jewish faith, strictly observing each Jewish religious holiday. One of these holidays is Passover, which spans eight days, on some of which no work is permitted by observers. Mr Bialick had already booked, amongst other days, 7 – 9 April as annual leave to observe this tradition. NNE Law alleged that they operated a policy that no employee should be away from the office for two weeks regardless of booked annual leave. As he had not been able to physically attend the office since 26 March 2020, NNE insisted that Mr Bialick return to work on 9 April 2020. When Mr Bialick refused, highlighting his religious beliefs, his employment was terminated.
The law: indirect discrimination
The definition of indirect discrimination is set out in Section 19 of the Equality Act 2010 (EqA). To summarise, indirect discrimination in the workplace focuses on provisions, criteria, or practices (PCPs) operated by the employer that look neutral on their face, but in reality work to the comparative disadvantage of people with a protected characteristic (which includes religious belief). The PCP must have both a group disadvantage and personal disadvantage to the individual bringing the claim. Where such a PCP is found, if the employer can show that the PCP is a proportionate means of achieving a legitimate aim, they can escape liability.
The tribunal found that NNE Law did operate a PCP of requiring employees to cancel leave following sickness absence, failing which they would be dismissed. The PCP did put people who shared Mr Bialick’s protected characteristic, i.e. being Jewish, at a particular disadvantage to people who did not share that characteristic: as public holidays in the UK fall on Christian festivals, Jewish employees wishing to book time off to observe their own Jewish religious holiday must take it from their unfixed annual leave, often at times when the workplace remains open. Having to cancel booked holiday or face dismissal required Jewish employees to choose whether to work when they are not permitted to work or be dismissed. Jewish employees were at a particular disadvantage and Mr Bialick was in fact put under that disadvantage.
Whilst the tribunal accepted that meeting client needs during Covid 19 was as a legitimate aim, they saw no evidence show this aim was not being met e.g. there were no examples of court deadlines or hearings being missed due to Mr Bialick’s absence. In any event, held the tribunal, there were less discriminatory ways of meeting the aim; sharing work calendars with colleagues, applying for extensions, or engaging a locum as a last resort.
Lessons for employers
In order to ensure members of a specific faith are not disadvantaged by seemingly neutral PCPs, employers should review their own policies through the lens of a multi-cultural and multi-faith workforce. On one hand, some employees will observe religious holidays whilst continuing to work, however they may also benefit from some adjustments; for example, many Muslim employees will work whilst fasting for Ramadan and may benefit from some alterations to their workload or hours, particularly in the first week or so. Others, such as Mr Bialick, will be prohibited by their faith from carrying out any work whatsoever, which may require some review of holiday and absence policies. As on many other issues, the best approach is often constructive communication between employer and employee in order to build fair and inclusive policies at work.
This blog was written by Michael Green, Trainee Solicitor at didlaw.
