Litigation Executive Dismissed For Refusing to Work Passover Was Discriminated Against

Litigation Executive Dismissed For Refusing to Work Passover Was Discriminated Against

Working on a Religious Holiday

In February 2022 the Employment Tribunal released its judgment in the case of Mr Philip Bialick and NNE Law Limited following a three day hearing which took place between the 15th and 17th December 2021.

On initial reading of the case the facts appear to be innocuous. It centred around a Claimant, a Litigation Executive at a small legal practice who was dismissed for failing to carry out a reasonable instruction and to attend his workplace as directed under his contract of employment.

A Correct Decision By The Employer?

However, on closer inspection of the facts the case was far more complicated than what was initially believed. The claimant had followed the usual company procedures and reserved the 9th April 2020 as a period of annual leave. However, his employer decided that Mr Bialick was obliged to attend work that day. The reasons provided by the employer were that the Claimant had been suffering from ill-health for a fortnight before holiday and was obliged to self-isolate. Mr Bialick also took this action seemingly out of common courtesy and respect for his colleagues.

How Did The Respondent Justify This?

In their employment contracts issued to their employees the Respondent had inserted a clause which did not permit colleagues performing the role of case handlers to be absent from the business premises for in excess of a two-week period. In the seemingly unfair decision and despite the fact that this holiday had been booked in advance the Respondent enforced its contractual provision and the Claimant was instructed to come into work.

End of the Story, Right?

In most cases employees may decide to attend the workplace as directed due to financial pressures from bill payments. However, in the context of this case the Claimant was of Jewish faith, and he made the Respondent aware that one of the most strictly observed holidays is the feast of Passover which occurred on 9th April 2020. He advised that his devout religious faith strictly forbade work on this date. The Claimant must be credited for deciding under duress not to go into the office when faced was tested.

The Claimant emailed the Respondent dated 8th April 2020 clearly communicating that the holiday on 9th April 2020 was for religious purposes and reasonably asked them to honour this request. He even emphasised the extent of his predicament by proceeding to explain that even communicating by letter directly conflicting with his religious beliefs. However, the Claimant seemingly had no alternative.

In response the Claimant’s employer wrote to him and communicated that they had no option but to dismiss him, because of non-attendance and posted his p45.

What Should Employers Do In This Situation?

The Claimant successfully claimed Indirect Discrimination in the Employment Tribunal on the evidence. It held that because Mr Bialick’s employer imposed a company absence policy mandating all employees to cancel annual leave following a period of sickness absence this amounted to discrimination. The Claimant was awarded in excess of £26,000.

All employers need to take notice of this case and avoid coming unstuck. They should be recognising that certain dates are required for the specific observation of religious holidays. The contractual provision disadvantaged the Claimant in comparison to those colleagues who did not share his devoutly religious Jewish faith. Employers need to be very careful when drafting such provisions into their contracts of employment, specifically avoiding incorporating clauses which on the surface seem to be neutral but when enforced treat a colleague with a protected characteristic less favourably.

The Legists Content Team

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SOURCES USED WHEN WRITING THIS ARTICLE#####

[1] Mr Philip Bialick v NNE Law Limited – Case Number 2405912/2020 – Employment Tribunal - EMPLOYMENT TRIBUNALS (publishing.service.gov.uk)

[2] Rule 62(3) Employment Tribunal Rules of Procedure 2013

[3] Section 19 Equality Act 2010 - https://www.legislation.gov.uk/ukpga/2010/15/section/19

[4] Homer -v- Chief Constable of West Yorkshire Police [2012] UKSC 15

[5] Dzieziak -v- Future Electronics – UKEAT 0271/11 (42)

[6] Chapter 4 Equality and Human Rights Commission Codes of Practice on Employment 2011

[7] Section 120 Equality Act 2010

[8] Section 124 Equality Act 2010

[9] Section 136 Equality Act 2010

[10] Hyde, John – Firm to pay £26,500 to worker sacked for not coming in on Jewish holiday – 7th March 2022 - Firm to pay £26,500 to worker sacked for not coming in on Jewish holiday | News | Law Gazette

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