In February 2020, Mr Bialick, an Orthodox Jew who worked as a litigation executive, booked a day's leave on 9 April 2020 – one of the days during Passover on which work is forbidden. It was NNE's practice that its case-handler employees were not allowed to be away from their office for more than two weeks (a policy of which he was unaware); because he had been absent through sickness in the immediately preceding fortnight, his line manager told him to attend on 9 April even though it was a pre-booked holiday. When booking his leave, he had not told NNE that he needed the dates to observe a religious holiday but had simply asked for annual leave and was granted it – and it was NNE's policy not to inquire into reasons. The situation appears to have been further confused by mixed messages from the Government about COVID-19 which Mr Bialick and NNE interpreted differently. In short, as an Orthodox Jew he saw no alternative but to absent himself on 9 April 2020, and he was dismissed.

The provision, criterion or practice (‘PCP’) at issue was NNE's rule that employees should cancel holidays if they had been unable to attend the office in the previous two weeks – which was applied to all, regardless of faith. The tribunal held that the PCP put persons with whom Mr Bialick shared the characteristic at a particular disadvantage when compared with persons with whom he did not share the characteristic. The working calendar observed public holidays on Christian festivals, notably Easter and Christmas, and Jewish employees who wanted to take religious holidays had to use their unfixed statutory and/or contractual entitlement. High holy days did not always occur when the workplace was otherwise closed; and on some of them, observant Jews were prohibited from working at all. Having to cancel leave already booked or to face dismissal therefore obliged Jewish employees to choose either to work when they were not permitted to do so or to be dismissed, which placed them at a particular disadvantage when instructed to cancel annual leave. The PCP therefore put Mr Bialick at a disadvantage and was not objectively justified. He had been the victim of indirect discrimination (protected characteristic religion or belief) contrary to section 19 of the Equality Act 2010. [Frank Cranmer]