Discrimination: An employer does not directly discriminate by treating an employee less favourably because of the employer's rather than the employee's religion or belief

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Discrimination: An employer does not directly discriminate by treating an employee less favourably because of the employer's rather than the employee's religion or belief

Published 14 March 2019

The dismissal of a nursery teacher for co-habiting with her boyfriend, contrary to her employer’s religious beliefs, and refusing to lie about it, had not suffered direct discrimination on the grounds of her religion.

THE FACTS

Ms de Groen was employed as a teacher in a Jewish nursery runin accordance with ultra-orthodox Chabad principles. At a work-related barbecue, her boyfriend mentioned that they were co-habiting. The headteacher and managing director told Ms de Groen that her private life was of no concern to the nursery, but that it risked damaging the nursery’s reputation in the eyes of the parents. They went on to express their views that cohabitation outside marriage was wrong, that having children outside marriage was wrong, that, at the age of 23, time was passing for Ms de Groen to have children and that she should seek counselling if she had problems with the idea of marriage. They suggested that she tell the nursery that she was no longer cohabiting, even if that were not true, so that they could tell parents that this was what she had told them. However, Ms de Groen refused to do this, and she was dismissed for (among other things) “acting in contravention of the nursery’s culture, ethos and religious beliefs” and damaging the nursery’s reputation.

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. Her claims were successful before the employment tribunal.
The nursery appealed.

The EAT allowed the appeal against the finding of direct religion or belief discrimination.
The employment tribunal had found that the disciplinary process and dismissal were inextricably linked with Ms de Groen’s lack of belief that co-habitation outside marriage was wrong and with the nursery’s belief. Her dismissal was because she had cohabited, which was against the nursery owners’ religious beliefs, and because she had refused to lie by saying that she was no longer co-habiting. However, the EAT disagreed with the employment tribunal. It held that the employment tribunal had made a mistake in deciding that a direct discrimination claim could arise just because the employer was acting because of its own religion or belief. It is an important principle of discrimination law that the discriminator’s motive for less favourable treatment is immaterial. Additionally, any direct discrimination claim based on the discriminator’s own characteristics will fail because the discriminator acting on its own belief would act in the same way towards anyone, and there would be no difference in treatment with any comparator.
The nursery owners’ appeal against the employment tribunal’s finding of indirect discrimination was also successful. The employment tribunal had found that the nursery’s position that “employees had to be prepared to make a dishonest statement about their relationship and/or private life in order to remain employed” and that this was a provision, criterion or practice. However, the EAT said that this was an error: this was an ad hoc solution, not a formal statement of practice or policy.

The nursery’s appeal against the finding of direct discrimination on the grounds of sex failed.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This case is a reminder that it is the employee’s protected characteristic, not the employer’s, that is relevant for discrimination claims. For more on this please see our alert covering the Lee v Ashers Bakery case here.

The judge also made some useful comments about the common practice of claimants of trying to shoehorn a single set of events into multiple legal categories. He discouraged this practice and recommended that claimants stay focussed on claims that “represent a realistic fit” to the events. These comments should be useful for employers defending claims where a Claimant has pleaded the same facts in multiple ways. The EAT’s comments in this case should be useful to narrow lists of issues in advance of preliminary hearings hopefully making hearings less complex.

Gan Menachem Hendon Ltd v. De Groen

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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