Dismissal for 'cohabitation outside marriage' was not religious discrimination

Gan Menachem Hendon Ltd v De Groen

The dismissal of a teacher at an ultra-orthodox Jewish nursery who refused to lie about living with her boyfriend was not discrimination on the grounds of religion or belief.

Background

Ms De Groen was a Jewish teacher at an ultra-orthodox nursery. After the nursery was made aware that Ms De Groen was cohabiting with her boyfriend, the head teacher and managing director met with her to discuss the matter and the problems it posed for the business. Their view was that whilst Ms De Groen’s private life was of no concern to them personally, it could endanger the reputation of the nursery from the perspective of parents. The head teacher and managing director suggested that Ms De Groen informed them that she no longer lived with her boyfriend, even if this was untrue, so that if any parents raised this matter with them that they could deny all knowledge. Ms De Groen refused to lie and was dismissed for the following reasons: ‘acting in contravention of the nursery’s culture, ethos and religious beliefs’ and damaging the reputation of the nursery. Ms De Groen brought tribunal claims of direct discrimination and harassment on the grounds of sex, and direct and indirect discrimination based on religion or belief. She won her claims of discrimination on the grounds of religion or belief and sex. The nursery appealed.

EAT decision

The appeal was allowed.

Applying the law in this area as clarified by the Supreme Court guidance in Lee v Ashers, it was the religion or belief of the discriminator (the nursery) that was relevant rather than the protected characteristic of Ms De Groen. The nursery acted the way it did because of its own beliefs and Ms De Groen’s non-compliance with those beliefs.

In Lee v Ashers the Supreme Court held that the purpose of discrimination law was to protect a person who had a protected characteristic from less favourable treatment because of that characteristic, not the protection of persons without that protected characteristic from less favourable treatment because of a protected characteristic of the discriminator. The discriminator's motive (i.e. their religious beliefs) for treating someone less favourably is not relevant. If someone is claiming discrimination, they must base this on a protected characteristic which they possess, or which the alleged discriminator perceives they possess, or which is possessed by an associated person.

Therefore, Ms De Groen's claims that the nursery had directly discriminated against her based on their belief, that cohabiting outside of marriage was not in keeping with the Jewish faith, could not succeed.

The EAT also rejected the indirect discrimination finding stating that the ad hoc measure of asking the employee to lie about her domestic arrangements could not amount to a provision, criterion or practice.

However, it upheld the original decision that she had been a victim of direct discrimination and harassment on the grounds of sex and referred the case back to the tribunal to decide the level of compensation to be awarded.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0059_18_1202.html

Comment

An employer’s less favourable treatment of an employee because of their (the employer’s) own beliefs is not likely to be sufficient grounds for a claim of direct or indirect discrimination in relation to religion or belief, although such treatment could give rise to other risks, such as the employee resigning and claiming constructive dismissal, or succeeding with a discrimination claim based upon another protected characteristic, such as the employee’s sex, as in this case.