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08 April 2019

159: No direct religious discrimination where worker was dismissed by Jewish nursery after refusing to lie about cohabiting

In Gan Menachem Hendon Limited v De Groen, the Employment Appeal Tribunal (the EAT) ruled that there was no direct discrimination where an employee’s less favourable treatment was due to the employer’s religion or belief.

Ms De Groen was a teacher at a Jewish nursery school run in accordance with ultra-orthodox Chabad principles. Her dismissal followed a barbeque at a synagogue affiliated with the nursery at which it became known that she was living with her boyfriend, which conflicted with the nursery’s religious principles. Ms De Groen is Jewish but does not share this view in relation to cohabitation. The nursery’s headteacher and managing director informed Ms De Groen that disciplinary action could be avoided if she confirmed that she was no longer cohabiting, even if that was untrue, so that the nursery could tell parents that this was what they had been told. They also informed her that cohabitation and having children outside marriage were wrong, that (at age 23) time was passing for her to have children, and that she should seek counselling if she was having problems with the idea of marriage. Ms De Groen was eventually dismissed on several grounds, including acting in contravention of the nursery’s culture, ethos and religious beliefs, and damaging its reputation and financial position.

Ms De Groen brought claims for sexual harassment, direct sex discrimination, and direct and indirect discrimination on grounds of religion or belief. The Employment Tribunal upheld all of these claims. As regards the direct religious discrimination claim, it found that Ms De Groen was dismissed because she was cohabiting, contrary to the nursery’s religious beliefs, and because she would not lie about it. There was also indirect discrimination since the nursery had applied a PCP of requiring her to lie about her private life in order to remain employed, which was not objectively justified. The nursery appealed to the EAT.

The EAT upheld the appeals in relation to direct religious or belief discrimination because it found that the nursery would have treated anyone else in the same way, regardless of their beliefs. This followed the Supreme Court’s ruling in the case of Lee v Ashers Baking Co Ltd that the owners of a bakery did not discriminate when they refused to supply a cake iced with the words ‘support gay marriage’ because they would have refused to bake a cake with that slogan for anyone, regardless of their sexuality. The nursery’s appeal against the finding of indirect discrimination was also upheld because there was no evidence that requiring Ms De Groen to lie was a generally-applied ‘practice’, rather than a one-off measure, and the Tribunal had not properly considered whether she had suffered a particular disadvantage compared to those who did not share her religion or belief.

Ms De Groen was successful in her claims for direct sex discrimination and harassment because of the nursery’s comments about marriage and pregnancy, and these claims were sent back to the Employment Tribunal to decide the level of compensation to be awarded.

This judgment confirms the principle that less favourable treatment on the grounds of a discriminator’s own religious belief is not enough to establish a claim of direct discrimination since there will be no difference in treatment between the claimant and any comparator. Although not applicable here, the EAT also confirmed that, in principle, there can be religious discrimination where the relevant individuals within the employer have the same religion as the employee, but hold a different opinion on certain aspects of that religion. For example, in this case, the nursery’s management and Ms De Groen were all Jewish, but differed in their views on cohabitation outside marriage.

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