Religious discrimination in employment: Bialick

9 April 2020 was a Jewish high holiday, one of the days during Passover on which work is forbidden.

In Mr Philip Bialick v NNE Law Limited [2022] UKET 2405912/2020, Mr Bialick, an Orthodox Jew who worked as a litigation executive, had booked a day’s leave on 9 April, but NNE told him to attend work because in the fortnight immediately before 9 April he had been absent from work because of illness and the need to self-isolate to avoid spreading COVID-19. NNE’s practice was that its case-handler employees were not allowed to be away from their office for more than two weeks (a policy of which he was unaware [41.a]) and they therefore required his attendance even though it was a pre-booked holiday [1-3].

When booking his annual leave in February 2020, he had not told NNE that he wanted the dates so that he could observe a religious holiday; he simply asked for the time off as annual leave and was granted it – and it was NME’s policy not to inquire into reasons [20]. It appears that the situation was further confused by mixed messages from the Government as a result of COVID-19, and differences in interpretation by Mr Bialick and NNE [21-31]. In short, as an Orthodox Jew, Mr Bialick felt that he had no alternative but to stay away from work on 9 April 2020 and he was dismissed [45].

The provision, criterion or practice (‘PCP’) at issue was NNE’s practice of requiring its employees not to be away from the office for more than two weeks, even where an employee had a holiday booked and agreed: NNE would require the employee to cancel the holiday if s/he had been unable to attend the office in the previous two weeks. It was applied to all employees regardless of faith [46]. The Tribunal held that the PCP put persons with whom the claimant shared the characteristic at a particular disadvantage when compared with persons with whom he did not share the characteristic [63].

The working calendar observed public holidays that recognised Christian festivals, notably Easter and Christmas [64]. Jewish employees who wanted to take holidays for religious observance had to book them from their unfixed statutory and/or contractual entitlement. They did not always occur when the workplace was otherwise closed, and on some high holydays, observant Jews were prohibited from working at all. The practice of cancelling holidays booked for that purpose or to face dismissal therefore obliged Jewish employees to choose whether to work when they were not permitted to work or be dismissed. That placed Jewish employees whose faith required them not to work on certain days at a particular disadvantage when instructed to cancel annual leave [65].

The PCP therefore put Mr Bialick at a disadvantage [66] and was not objectively justified [67-70]. He had been the victim of indirect discrimination (protected characteristic religion or belief) pursuant to s 19 Equality Act 2010.

Cite this article as: Frank Cranmer, "Religious discrimination in employment: Bialick" in Law & Religion UK, 10 March 2022, https://lawandreligionuk.com/2022/03/10/religious-discrimination-in-employment-bialick/

Leave a Reply

Your email address will not be published.