Firm fired Jewish employee after taking time off for religious holiday

Passover: Claimant was observant Jew

A law firm has been ordered to pay a former Jewish employee £26,500 in damages after it fired him for not attending work when instructed, even though it was a religious holiday he had booked off.

Philip Bialick had been self-isolating due to Covid for the fortnight before his leave and NNE Law’s policy was that no member of staff could be away from the office for more than two weeks.

Mr Bialick was an observant Jew who, as a result, was not permitted to work on certain high holidays, in this case Passover. In February 2020, the litigation executive booked off nine days in April.

On 24 March, Mr Bialick did not go into the office in the wake of lockdown and the prime minister’s announcement the previous day that people should work from home.

However, NNE Law – a small personal injury firm – kept its office open, telling staff its work was essential, and required them to go into the office. The employment tribunal described it as a “cramped” space with staff around two feet, rather than two metres, apart.

Employment Judge Leach in Manchester acknowledged that NNE was a small business having to react to a rapidly changing situation.

“Even so, the respondent had obligations to its staff including to offer a safe working environment.

“The clear message received was to work from home where possible; instead, the respondent appeared to be taking no steps towards this or, in the alternative, providing a safe place of work, instead requiring its employees to attend the offices.

“We have no criticism of the claimant’s behaviour in this period other than to note that he could have been the first to make contact on 24 March 2020 to inform his employer that he felt unable to safely attend the workplace.”

Fearing the sack, Mr Bialick went into the office on the next two days, but after feeling ill, he contacted the NHS and was instructed to stay home. He was given two isolation notes covering two weeks, but his return coincided with the holiday he had booked off.

Judge Leach said: “The claimant expected to take his annual leave entitlement even though he had been self-isolating. We have no criticism of the claimant for making this assumption.”

NNE had sent him a letter by second-class post which arrived on 8 April, the second day of his holiday and last day of his isolation.

This said that, due to company policy and the “time-sensitive nature” of its work, it could no longer authorise his leave. It also referenced his “unauthorised” leave on 24 March.

Mr Bialick responded by email to explain why he had booked the time off and that he was still unwell. He added that he was even breaking his religious observance by replying to the letter, which he felt he had to do.

NNE dismissed him the following day as he had “decided to not come in”.

The judge said: “[Observant Jewish employees] are prohibited from working at all on certain high holidays.

“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.”

NNE sought to justify its two-week policy on the basis of client needs but the tribunal rejected this.

“We accept that the requirement of meeting client needs is a legitimate aim; However, there was no evidence before us that those client needs were not being met,” Judge Leach said.

“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.”

There were “less discriminatory ways” of meeting the aim, he went on, such as sharing work calendars with colleagues, applying for postponements or extensions of time, or even using a locum, which is what NNE did following the dismissal.

On remedy, the tribunal awarded £18,000 for injury to feelings. “We accept that the dismissal had a devastating impact on him and that he was affected mentally and emotionally. We accept that the claimant was dismissed by Mr Nazokkar, who is the most senior person at the respondent, but also in the past had been a workplace friend and colleague of the claimant.”

Mr Bialick secured another job by early July 2020 and so loss of earnings was limited to £5,400. With interest, the award reached £26,500.

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