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Can a direct discrimination claim be based on the employer’s religion or belief?

22 March 2019

In Gan Menachem Hendon Limited v De Groen the Employment Appeal Tribunal (EAT) considered whether an employee could bring a claim for discrimination on the grounds of religion or belief based on the employer’s religious beliefs.

Gan Menachem Hendon Limited ran a Jewish nursery in accordance with ultra-orthodox principles and employed Ms De Groen as a teacher. When it became known to one of the nursery’s directors and some parents that Ms De Groen was co-habiting with her boyfriend (which was against orthodox Jewish principles) she was called into a meeting with the head teacher and managing director of the nursery. During the meeting the head teacher (L) and managing director (T) told Ms De Groen that what she did in her private life was of no concern to them but, in order for her to remain in her employment at the nursery, proposed that she should tell them that she was not living with her boyfriend and they could therefore tell this to the parents. L and T both then continued for some time, telling Ms De Groen that co-habitation and having children outside marriage were wrong and that time was passing for her (aged 23) to have children. They also told her that if she had a problem with the idea of marriage she should have counselling. Ms De Groen was very distressed by the meeting and the suggestion that she should lie in order to keep her job. She refused to lie and was dismissed on the grounds of having acted in contravention with the nursery’s culture, ethos and religious beliefs and that the nursery would suffer a financial detriment as a result of parent complaints and removal of children from the nursery.

Ms De Groen brought claims of direct discrimination on the grounds of sex and her religious beliefs, indirect discrimination on the grounds of her religious beliefs and sexual harassment. She was successful in all claims in the original employment tribunal (ET).

The nursery appealed to the EAT. The EAT upheld the ET’s decisions on the sex discrimination and sexual harassment claims. L and T would not have treated a man in the same way that they treated Ms De Groen in the meeting, giving their views on childbearing and marriage (and they admitted this in their evidence). In terms of sexual harassment, the test is that the conduct was unwanted and caused her to feel humiliated. It was very clear that both these requirements were met. Ms De Groen gave evidence of feeling humiliated as she felt that she was being reprimanded for her decisions about her private life as if by her mother or her school.

However, the EAT held that Ms De Groen could not base her direct discrimination claim on the nursery’s religious beliefs as opposed to her own. The EAT cited the recent Supreme Court decision in Lee v Ashers Baking Company where Lady Hale held that such a claim is not possible under the Equality Act 2010. Lady Hale said this is because the purpose of discrimination law is to protect those with a protected characteristic from less favourable treatment because of that characteristic; any direct discrimination claim that rested on the discriminator's protected characteristic would be doomed to fail because any comparison between the person receiving the less favourable treatment and other persons would always produce the result that there had been no difference in treatment. This was true in Ms De Groen’s case because when comparing her treatment with that of another unmarried member of staff co-habiting the treatment would not differ and therefore she could not be said to have been directly discriminated against.

Regarding the indirect discrimination claim, the EAT did not consider that L and T’s treatment of Ms De Groen could constitute a ‘practice’. The test was that there was a practice which would apply equally to all employees but would put employees of Ms De Groen’s religion at a disadvantage compared to other employees. An ad hoc proposal such as the requirement that she lie about her co-habitation in order to maintain her employment did not amount to a practice. In addition, there was no evidence to show that a requirement to lie about an aspect of their private life would have put others who shared Ms De Groen’s belief at a particular disadvantage.

Comment

This case is notable in that it is an early example of a court following the precedent recently established by the Supreme Court in Lee v Ashers Baking Company (where it was held not to be discriminatory to refuse on religious grounds to bake a cake with a slogan supporting gay marriage).

It also shows the care that faith-based schools must take when seeking to apply their particular religious ethos or culture to staff. This is a complex area and the experience of the nursery here demonstrates the importance of taking specialist advice before acting.

By Adam McRae-Taylor

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