The Employment Appeal Tribunal has held in Gan Menachem Hendon Limited v De Groen that a Jewish nursery did not directly discriminate against an employee (who was unmarried but lived with her partner) when it dismissed her due to the nursery management’s religion/belief.
Ms Zelda de Groen was working as a teacher in an ultra-orthodox Jewish nursery. It came to the attention of the nursery management that she was co-habiting with her partner, to whom she was not married. It was suggested to her that she should tell the nursery (so that they could inform concerned parents) that she was no longer living with her partner, even though this would have been untrue. She refused to do so. The nursery subsequently dismissed her for acting in contravention of the nursery’s ethos and religious beliefs, damaging the nursery’s reputation, and risking loss of income by parents withdrawing children.
Ms de Groen brought claims of direct discrimination and harassment on the ground of sex, and direct and indirect discrimination on the ground of religion or belief. The Employment Tribunal upheld all of the claims. The nursery appealed to the Employment Appeal Tribunal (EAT).
The EAT allowed the appeals against the findings of direct and indirect discrimination on the ground of religion or belief. It held that the nursery had not discriminated either directly or indirectly on that ground.
The EAT referred to the recent Lee v Ashers Bakery case (see our case report here) in which the Supreme Court confirmed that a direct discrimination claim can only be made on the basis of the religious belief of someone other than the alleged discriminator. In this case, the nursery had treated Ms de Groen less favourably, but they had done so on the grounds of their own religious belief, not hers. The nursery’s appeal on direct religion or belief discrimination therefore succeeded.
The definition of ‘religion or belief’ under the Equality Act not only includes religious and philosophical beliefs, but also includes a lack of belief. Although Ms de Groen was of the Jewish faith, her views on co-habitation before marriage differed from the views held by the nursery management. Although the tribunal did not find that Ms de Groen had been treated less favourably because of her lack of belief, the EAT said that in other cases, discrimination on the grounds of religion or belief could extend to people of the same general religious belief where the claimant is treated less favourably because of their lack of belief on a point that the respondent considers to be a tenet of that religion.
The EAT also held that there was no indirect discrimination on ground of religion or belief. It found that there was no evidence that the nursery’s actions (asking the claimant to make a dishonest statement about her relationship, in order to remain employed) were anything other than an ad hoc measure. The actions did not, therefore, meet the requirement of a ‘provision, criterion or practice’ (PCP) that is necessary in the case of indirect discrimination. The EAT also held that had there been such a PCP, it would not have put Ms de Groen and other Jewish people who shared her belief (i.e. that co-habitation outside marriage was not contrary to their faith) at a particular disadvantage when compared with others. Asking an employee to be dishonest in order to keep their job would have a negative effect on all.
This case is significant in that it applies the reasoning used in the well-publicised Lee v Ashers Bakery case regarding direct discrimination and consideration of the discriminator’s motives in an employment context.
On the face of it, the case appears to indicate potential for an employer to treat an employee unfavourably because of the employer’s own religion or beliefs without there being any recourse in discrimination law for the employee. There may be other avenues that employees can pursue in such circumstances. In this current case, the employee successfully claimed harassment and direct discrimination on the grounds of sex as the nursery had admitted that they would not have treated a man in the same way. In addition, a dismissal may still be unfair even if it does not constitute a discriminatory act. It is therefore important for employers to ensure that a proper process is followed in the event that it seeks to dismiss an employee even where it is confident that there is no discrimination.