An employee has won £26,479.86 after an employment tribunal found that he had been subjected to indirect religious discrimination. The employee was dismissed after annual leave he had pre-booked to allow him to observe a religious holiday was cancelled by his employer and he did not attend work on those days.
This case highlights the importance of employers being alert to indirect discrimination in the workplace.
What happened in Bialick v NNE Law Ltd?
The employee was a Litigation Executive who worked for a small employer handling civil claims. He is Jewish and was brought up in the Orthodox Jewish faith. His faith requires him to observe Jewish holidays, on some of these days no work is permitted.
The employee was entitled to 5.6 weeks holiday a year which included the usual eight bank holidays in England and Wales. Some of the employee’s bank holiday entitlement coincided with the Passover holiday, for the remainder of the Passover holiday the employee requested annual leave in the usual way. Whilst the employee didn’t tell his employer that the time off was for him to observe a religious holiday, his request was approved.
The employee subsequently caught covid and had a period of sick leave. This was due to end just before his annual leave was supposed to start and the employee expected to be able to take this. Unbeknown to him the employer had a policy that no employee could be away from the office for more than two weeks. This meant that where an employee had been absent from the office due to sickness or another reason and was then due to take holiday that employee would be instructed to cancel it.
The employer wrote to the employee cancelling his holiday and requiring him to return to work on 9th April 2020 – the employee only received this letter on 8th April. Of the days off the employee had booked, the 8th and 9th April 2020 were particularly important as those were days of Passover on which he was not permitted to work.
The employee emailed the employer explaining that the holiday he had booked was for a religious Jewish festival which started on that day, expressing the hope that the employer would continue to honour the time off. The employer dismissed the employee without further contact or discussion. The employee had only been employed for a few months.
The employee took his employer to tribunal complaining that he had been subjected to indirect religious discrimination.
What was the decision?
The judge upheld the employee’s claim because it was found that…
The employee was placed at a disadvantage by the employer’s policy
The employer’s policy of requiring employees 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 England and Wales) at a disadvantage. Religious holidays did not always occur when the business was closed, and the practice of cancelling holidays booked for religious observance required the employee to choose whether to work when not permitted to do so or be dismissed.
The employer didn’t have a legitimate aim and hadn’t acted proportionately
The employer had argued that they could objectively justify their actions so indirect discrimination had not occurred. But the tribunal found that whilst meeting clients’ needs in the pandemic could be a legitimate aim, there was no evidence it applied in this case. The employer couldn’t show that client needs weren’t being met, such as by a deadline nearly being missed because of the employee’s absence. Instead, the judge found the employee to be well organised and up to date.
In any event, there were less discriminatory ways of meeting the aim, for example sharing work calendars with colleagues, applying for postponements or even as a last resort engaging a locum which is what the employer did after the employee’s dismissal.
It’s important to ensure that you act fairly and appropriately when applying policies, practices, and procedures in your business to avoid employment tribunal claims arising.
If an employee in your organisation makes a request for time off for religious observance or makes a request for any other change, such as one to working hours, you should contact us for advice on your situation. This is especially important if you are considering refusing the request.
If you have any employment law matter, you would like assistance with please contact us as we are here to help.