The EAT has ruled that an employee who was dismissed after it became known that she was cohabiting with her boyfriend, in conflict with the religious beliefs of her employer, was not discriminated against because of religion or belief. The employer had dismissed the employee because of its own religious belief, rather than the religious belief (or lack of belief) of the employee, and a direct discrimination claim cannot succeed in such circumstances. The EAT also held that the employee had not been subject to indirect discrimination, as it could not identify any provision, criterion or practice which had been applied.

Facts

The Claimant was employed as a teacher in a Jewish nursery, which was run according to ultra-orthodox principles. At a social event, at which staff and parents from the nursery were present, the Claimant's boyfriend mentioned that he and the Claimant lived together. The nursery subsequently received complaints from several of the parents about the Claimant's living arrangements, and at least one parent threatened to withdraw their child from the nursery. The nursery manager and the headteacher called the Claimant to a meeting, at which they expressed the view that cohabitation outside of marriage was wrong. They also told her that her living arrangements were causing potential damage to the nursery's reputation. They suggested that one potential solution would be for the Claimant to confirm that she was no longer living with her boyfriend – even if this was not true - so that the nursery could tell parents that this is what she had told them. The Claimant refused to lie about her living arrangements and was dismissed. The reasons given for dismissal were that the Claimant had acted in contravention of the nursery's ethos and religious beliefs, and that she had damaged the nursery's reputation, which could potentially lead to financial detriment.

The Claimant brought successful claims against the nursery for direct and indirect discrimination on grounds of religion and belief. In relation to direct discrimination, the Tribunal found that the nursery had treated the Claimant less favourably than it would have treated someone who shared its beliefs on cohabitation, and it had done so because of those beliefs (as well as the fact that the Claimant refused to lie about her living arrangements). As for indirect discrimination, the Tribunal found that the nursery applied a PCP of requiring the Claimant to make a dishonest statement about her private life in order to remain employed. This gave rise to particular disadvantage (including her dismissal) which was not objectively justified. The Claimant also brought successful claims for sex discrimination and harassment.

Decision

The nursery appealed on various grounds, and the EAT allowed the appeal in relation to both direct and indirect religion or belief discrimination.

In relation to direct discrimination, the EAT held that the Tribunal had applied the wrong legal test, by focusing on the religious beliefs of the nursery, rather than the religious belief (or lack of belief) of the Claimant. The EAT referred to the Supreme Court's decision in Lee v. Ashers (the gay cake case) where Lady Justice Hale stated that the purpose of discrimination law is to protect a person who had a protected characteristic from less favourable treatment because of that characteristic, and not to protect people without a protected characteristic from less favourable treatment because of a protected characteristic of the discriminator. She said that, in any event, a direct discrimination claim based on the discriminator's own religion or belief would be doomed to fail, as such a person would act in the same way towards anyone and there would be no difference in treatment with any comparator. On the facts of this case, the EAT held that the Claimant's dismissal could not be characterised as being due to her own lack of belief, and her claim for direct discrimination must therefore fail.

The EAT did confirm that, in principle, direct discrimination can arise where the claimant and respondent are of the same religion, but 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. However, it found that this was not what had happened in this case.

In relation to indirect discrimination, the EAT disagreed with the Tribunal that the nursery had applied a PCP (that the Claimant had to make a dishonest statement about her private life to remain employed). The EAT held that this did not amount to a PCP as it was simply an "ad hoc measure", rather than an indication of their general approach. Even if there had been a valid PCP, the EAT considered that the Claimant did not suffer any particular disadvantage as any potential comparator group (whether that would be other Jews or other persons more generally) would have been equally disadvantaged about the requirement to lie about an aspect of their personal life.

Comment

This case confirms the principle established in Lee v. Asher that the alleged discriminator's religious beliefs are not relevant when determining whether direct discrimination has occurred. However, the difficulty with taking this principle at face value is that the beliefs of the discriminator and victim are often inextricably linked. Someone who discriminates against another because of that person's religion (or lack of) will usually be doing so because their own religious beliefs conflict with those of the victim. Employers should therefore be alert to the fact that there are likely to be cases where, on the facts, the employee will be able to show that they have been directly discriminated due to their lack of belief, even though the employer's own beliefs have also impacted their actions or decision making. 

Gan Menachem Hendon Limited v. De Groen, Employment Appeal Tribunal