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Religious Discrimination – Jewish worker awarded over £26,000 following dismissal for Passover absence

employer ordered to pay for indirect sex discrimination

27th May, 2022

Facts

Mr Philip Bialick (Claimant) was dismissed because he did not attend work when he was instructed to do so on 9 April 2020. The Claimant is Jewish and was brought up in the Orthodox Jewish faith which requires him to observe Jewish holidays. The Claimant had booked annual leave on 9 April 2020 as it was a Jewish high holiday, being Passover. Passover is an eight-day holiday in accordance with the Claimant’s faith and 8 and 9 April 2020 were particularly important as those were the high days holidays of Passover on which no work was permitted.
Although this holiday was previously approved by NNE Law Limited (Respondent) in February 2020, the Respondent subsequently instructed the Claimant to attend work on 9 April 2020. In the two-week period immediately before this pre-booked holiday, the Claimant was absent from work due to self-isolating.

The Claimant replied to the Respondent advising “…The holiday I booked was for a religious Jewish festival. Passover which starts today. I hope you will continue to honour this”. The Claimant did not attend work and was subsequently dismissed.

Indirect Discrimination
The Respondent had a policy in place which provided that its case handler employees were not allowed to be away from the office for more than two weeks. In practice, this meant that if an employee had been absent from work for two weeks immediately prior to booked annual leave, the Respondent would require the employee to cancel this annual leave.

The Claimant argued that this is/was a practice of the Respondent which applied to all employees regardless of faith and issued a claim for indirect discrimination on the grounds of religion.

By way of background, indirect discrimination occurs where:
1. A applies to B a provision, criterion or practice (PCP).
2. B has a protected characteristic.
3. A also applies (or would apply) that PCP to persons who do not share B’s protected characteristic.
4. The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others.
5. The PCP puts or would put B to that disadvantage.
6. A cannot show that the PCP is a proportionate means of achieving a legitimate aim.

Judgment
Applying the above legal test:
1. The Tribunal found that the Respondent had a PCP which required employees to cancel leave following sickness absence, or to face disciplinary action, up to dismissal. It was held that the Respondent applied this PCP to the Claimant.

2. The Claimant’s protected characteristic was his religion/ belief.

3. The PCP was applied to persons not sharing the same protected characteristic as the Claimant (being the Claimant’s faith).

4. The Tribunal found that the PCP put persons with whom the Claimant shares the protected characteristic at a particular disadvantage when compared with others. The Tribunal notes that the working calendar observes public holidays which recognise and respect Christian festivals, referred to as such in the Claimant’s contract of employment as “the usual public holidays”. Where Jewish employees wish to take holidays to observe their own religion, these do not always occur when the workplace is otherwise closed and so they need to book holidays from their contractual entitlement. Observing the Claimant’s religious belief prohibited working at all on certain high holidays. The Tribunal held that “[t]he 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.”

5. The PCP was found to put the Claimant at a disadvantage as he was instructed to attend work on a Jewish holiday when he was not permitted to work because of his Jewish faith.

6. Turning to the legitimate aim defence, the Respondent argued that its aims were meeting client needs during Covid. The Tribunal accepted that this was a legitimate aim. However, the Tribunal found no evidence that those client needs were not being met. For example, the Respondent did not provide any evidence of a court deadline or any hearing that was missed because of the Claimant’s absence. It was found that other less discriminatory ways could have been used to meet this aim, e.g., sharing calendars or applying for postponements.
It was held that the Claimant had been indirectly discriminated against and the Claimant was awarded £26,479.86 (consisting of damages for injury to feelings; loss of income and interest).

Comment
This case highlights the importance of recognising and permitting time off for religious holidays beyond Christian festivals (notably Easter and Christmas). We suggest that employers review their absence/ holiday policies to ensure that employees are not disadvantaged for booking time off for religious holidays. Whilst we appreciate that it is important for employers to exercise policies consistently, it is also important that employers are willing to exercise discretion where necessary to prevent claims of indirect discrimination.

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