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Following on from our recent articles, Furlough Unfair Dismissal Cases Continue and Refusing To Attend Work Due To Covid-19 – Is It A Justifiable Health And Safety Concern?, we continue to raise awareness to employers of recent judgments in unfair dismissal and discrimination claims relating to Covid-19 and refusing to attend work, as those judgments are published.
Most recently, we have seen the judgement in the case of P Bialick v NNE Law Ltd, in which the Tribunal found that a company’s policy which requires staff to cancel holidays and return to work if they had been absent for two weeks, put employees who observed religious holidays other than Christian festivals at a disadvantage.
In this case, Mr Bialick was a litigant executive at NNE Law (a personal injury law firm) and is of Orthodox Jewish faith. Due to his faith, Mr Bialick was not permitted to work on certain Jewish holidays, in this case Passover. As a result, in February 2020 Mr Bialick booked 9 days’ annual leave to be taken in April 2020 over the days of Passover.
On 24 March 2020, Mr Bialick did not attend work in the office due to the prime minister’s announcement of the national lockdown as a result of Covid-19, which took place on the previous day and advised that people should work from home.
Mr Bialick was instructed by NNE Law to attend work in the office as it believed his work to be essential, and they would be keeping their office open. In response, Mr Bialick returned to the office on the 25 and 26 March 2020.
On attending work on 26 March 2020, Mr Bialick began to feel unwell so contacted the NHS and was consequently instructed to stay at home. He was issued with two isolation notes as a result which covered a two week period up until 8 April 2020.
On 8 April 2020, Mr Bialick received a letter from NNE Law by post which was dated 2 April, challenging his unauthorised absence on 24 March and noting that, although he had been self-isolating, it could no longer authorise his annual leave from 7 April to 17 April “due to company policy” and the “staffing issues” caused by the pandemic.
Mr Bialick responded by email to explain why he had booked the time off and that he was still unwell. In addition, he also explained that he was even breaking his religious observance by replying to the letter, which he felt he had to do.
NNE Law dismissed Mr Bialick on 9 April 2020 as he had “decided to not come in”.
Upon review of the policy, the Tribunal found that the company policy insisted on no more than two weeks’ absence from the office. As result, even where an employee has a holiday booked and agreed, it was essential to cancel the holiday if they had been unable to attend the office in the previous two weeks.
NNE Law’s defence to its two-week policy was on the basis of client needs being the legitimate aim, but this was rejected by Employment Judge Leach as there was no evidence to suggest client needs were not being met, and also suggested that NNE Law was not offering its staff a safe working environment, as the conditions Mr Bialick was expected to work in were described as ‘cramped, being two feet rather than two metres apart’.
The judgment states: “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.”
Consequently, Mr Bialick’s claim for indirect discrimination on the grounds of religion was successful and he received £26,479.86, which included an injury to feelings award and loss of earnings.
What does this mean for Employers?
Even though this case turns on slightly unusual facts, employers should remember that the use of the defence of COVID-19 in Employment Tribunals cannot always be relied upon.
For further assistance on either Covid-19 related or any other employment matters, please contact our Employment team.