A Jewish employee who lost his law firm job for failing to attend work during a religious holiday has won more than £26,000 at an employment tribunal.
Mr Bialick, who was a litigation executive at Manchester-based personal injury law firm NNE Law, is of Orthodox Jewish faith and strictly observes Jewish holidays – on some of which no work is permitted.
His relationship with his employer became strained when he did not turn up at the office on 24 March 2020. This was the day following the prime minister’s direction for everyone to stay at home unless they were carrying out essential work, in order to curb the spread of Covid-19.
Bialick was urged to come into the office as the firm deemed his work as “essential”. Despite expressing his fears for his safety, especially as the firm’s office was small and social distancing was not possible, he returned to the office on 25 and 26 March 2020 as he feared losing his job.
The claimant started to feel ill when he returned from work on 26 March. He contacted the NHS and was instructed to stay at home. He informed his employer of this on 27 March and later that day sent a copy of his isolation note, which said he would isolate up to, and including, 1 April. A second isolation note was later issued, extending the period to 8 April.
The prior February, Bialick had booked annual leave for Passover in April 2020. His request had been approved. Of these days off, 8 and 9 April were particularly important as those were the days of Passover on which his Jewish faith did not permit him to work.
On 8 April he received a letter from his employer, dated 2 April, challenging his unauthorised absence on 24 March and noting that although he had been self-isolating, it could no longer authorise his annual leave from 7 April to 17 April “due to company policy” and the fact the pandemic had caused “staffing issues”.
“We look forward to your return to work on 09/04/2020,” the letter concluded.
The tribunal heard that NNE Law had a company policy that insisted on no more than two weeks away from the office. This meant that even where an employee has a holiday booked and agreed, they were required to cancel the holiday if they had been unable to attend the office in the previous two weeks. . Bialick had not been aware of this policy.
He emailed the company, noting that the annual leave had been for a religious festival, stating “I hope you will continue to honour this”. He said he would return to the office “when my health allows for it”, as his Covid-19 symptoms continued.
He explained that he was even breaking his religious observance on 8 April by being required to reply to the firm’s letter, which he did not want to do but decided he needed to so that he could ask that his religious observance be respected.
He later received a letter, dated 9 April 2020, dismissing him without further contact or discussion. The letter said: “As you have decided to not come in, we are left with no alternative but to end your employment contract with NNE Law Ltd. You will be sent your P45 in the post shortly. We wish you all the best.”
The employment tribunal found that the company’s policy of requiring staff to cancel holidays if they had been absent to ensure they returned to work after two weeks put employees who observed religious holidays other than Christian festivals – which are public holidays in the UK – at a disadvantage.
The judgment says: “The practice of cancelling holidays booked for that purpose or to face dismissal therefore requires Jewish employees to choose whether to work when they are not permitted to work or be dismissed. That places Jewish employees whose faith requires they do not work on certain days, at a particular disadvantage when instructed to cancel annual leave.”
It noted that while the firm’s policy had a “legitimate aim” of meeting client needs, it provided no evidence that those client needs were not being met when it dismissed Bialick.
“The respondent did not provide any instance of, for example, a court deadline or hearing that was missed or nearly missed as a result of the claimant’s absence. We accepted the claimant’s evidence that he was well organised and up to date.
“Further, and in any event, there are less discriminatory ways of meeting the legitimate aim, for example sharing work calendars with colleagues, applying for postponements or extensions of time or even the step that the respondent noted on its response form it had to take as a last resort following the claimant’s dismissal; engaging a locum.”
His claim for indirect discrimination on religious grounds was successful, however a complaint of unlawful deduction from wages was dismissed.
Bialick is to receive compensation totalling £26,479.86, including awards for injury to feelings and loss of earnings.