It is a well-known tenet of employment law that employees are protected from discrimination by their employer, in respect of a number of “protected characteristics”, from day one of their employment. But what happens when the reason for the alleged discriminatory treatment is due to an employer’s own “protected characteristic” – such as, for example, their religion or belief – rather than the employee’s? There has been a spate of case law recently on the interplay between protected characteristics and, more specifically, between the protected characteristics of religion or belief, and sex or sexual orientation. Perhaps the most high profile of these cases, is the case of Lee v Ashers Baking Company Limited and Others  UKSC 49, in which the Supreme Court held that a bakery’s refusal to bake a cake with a slogan supporting gay marriage, on the basis of the religious beliefs of the bakery’s owners, was not discrimination. More recently, in the case of Gan Menachem Hendon Limited v De Groen UKEAT/0059/18, the Employment Appeal Tribunal has held (applying the judgment in Lee v Ashers), that the dismissal of a teacher by a Jewish nursery school, for co-habiting with her boyfriend in contravention of orthodox Jewish principles, was not religious belief discrimination (albeit it did amount to sex discrimination) because the treatment in question was based on the nursery’s belief not the teacher’s belief or lack thereof.
Gan Menachem Hendon Limited v De Groen: The Facts of the Case
Ms De Groen was employed as a teacher in a Jewish nursery which was run in accordance with ultra-orthodox Chabad principles. After becoming aware that she was co-habiting with her boyfriend, the nursery told Ms De Groen that they believed that cohabitation outside of marriage was wrong, that having children outside of marriage was wrong, that 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 also said that, though her private life was of no concern to them, there was a risk of damage to the nursery’s reputation if parents found out about her cohabiting with her boyfriend. They suggested, as a potential solution, that Ms De Groen tell them that she was no longer living with him, even if that were not true, so that they could tell parents that this was what she had told them. When she refused to do this, Ms De Groen was dismissed. The written grounds for dismissal included “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 and indirect discrimination on the ground of religion or belief, and direct discrimination and harassment on the ground of sex.
At first instance, the Employment Tribunal upheld all of Ms De Groen’s claims. In respect of the claims for religion or belief discrimination, it found that Ms De Groen had been dismissed because her cohabitation with her boyfriend was contrary to the nursery’s religious beliefs and because she would not untruthfully say that she was no longer cohabiting, not because her conduct posed any threat to the economic wellbeing of the nursery (as the nursery sought to argue). It consequently found that, because the disciplinary process and the decision to dismiss were inextricably linked with Ms De Groen’s lack of belief that cohabitation outside marriage was wrong and the nursery’s belief that it was, there had been direct discrimination on grounds of religion or belief. In respect of the claims for indirect discrimination on the grounds of religion or belief, the Tribunal found that the nursery had applied a provision, criterion or practice of requiring Ms De Groen to make a dishonest statement about her private life in order to remain employed. This gave rise to particular disadvantage in the form of detriment and dismissal, for which there was no objective justification. The Tribunal also upheld Ms De Groen’s claims of discrimination and harassment on the ground of sex, on the basis of the comments the nursery had made to her about marriage and having children. The nursery appealed.
The Employment Appeal Tribunal’s Decision: No Discrimination on Grounds of Religion or Belief
The Employment Appeal Tribunal allowed the nursery’s appeal in respect of the findings of direct religion or belief discrimination. It held that Ms De Groen had been dismissed because of the nursery’s belief that cohabitation was wrong, not because of her own lack of belief, and that this did not constitute direct religion or belief discrimination under the Equality Act 2010. In making this finding, the EAT relied on the Supreme Court judgment in Lee v Ashers that protection from discrimination on the basis of the protected characteristic of religion or belief does not extend to the religion or belief of the alleged discriminator. According to Lady Hale’s commentary in Lee v Ashers, the purpose of discrimination law is to protect those with a protected characteristic from less favourable treatment because of that characteristic; and any claim based on an alleged discriminator’s own protected characteristic is doomed to fail, as a discriminator acting because of their own belief would act in the same way towards anyone and there would be no difference in treatment with any comparator. The EAT in the De Groen case consequently found that the Tribunal had erred by concluding that a direct discrimination claim could arise from the employer acting because of its own religion or belief. Furthermore, it was not possible to characterise the Tribunal’s findings as a conclusion that Ms De Groen suffered detriments because of her lack of belief (which is a protected characteristic). Though the Tribunal had found that the nursery was trying to impose its own beliefs on Ms De Groen, on these particular facts that only meant that they acted because of their own beliefs, not because of her lack of belief.
The EAT also allowed the nursery’s appeal in respect of the findings of indirect religion or belief discrimination, and held that the “solution” proposed by the nursery, requiring Ms De Groen to lie, was not a general approach or practice capable of amounting to a PCP, as it was clearly nothing more than an ad hoc measure. Thus, as no viable PCP had been identified, the indirect discrimination claim failed.
The EAT went on to dismiss the nursery’s appeal against the findings of sex discrimination and harassment and upheld these aspects of Ms De Groen’s claim.
Though Ms De Groen may arguably have been treated badly by her employer because she did not agree with their views on the acceptability of cohabitation in the Jewish religion, on the facts of this case this was not sufficient to satisfy the legal tests for either direct or indirect discrimination on grounds of religion or belief. As was made clear by the Supreme Court in the Lee v Ashers case, less favourable treatment because of the belief or religion of an employer is not necessarily enough to make out a claim for direct religion or belief discrimination, particularly if that less favourable treatment is not because of the employee’s religion, belief or lack thereof. However, this is a complex area of law, which turns very much on the facts of each case, and in relation to which there is often a significant interplay between a number of protected characteristics. What is also notable, is that in this instance, the nursery’s treatment of Ms De Groen was discriminatory, albeit on the grounds of sex rather than religion or belief, in light of the nursery’s comments regarding marriage and having children.
Employers should therefore be wary to rely on this decision in order to impose their own religion or belief on employees, or dismiss on this basis, especially given the fact that such treatment could still be discriminatory on the grounds of other protected characteristics. Employers must take care to ensure that they do not impose discriminatory practices in the workplace, and should bear in mind that doing so can (as in this case) lead to time-consuming and costly Employment Tribunal proceedings, as well as reputational damage.
Posted on 19/03/2019 in Legal UpdatesBack to Knowledge