In the case of Ms Z De Groen v. Gan Menachem Hendon Ltd, an employment tribunal made a finding of religious and sex discrimination against a faith-based nursery after it dismissed a teacher for the way she was living her personal life.
Ms De Groen was cohabiting with her boyfriend, something which was not seen to be in-keeping with the principles and practices of the ultra-orthodox Jewish ethos of the school. After parents complained to the school, Ms De Groen was summoned to a meeting, in which she was probed about her personal life. Following a second meeting and a disciplinary hearing in Ms De Groen's absence, she was dismissed for "some other substantial reason" for acting in contravention of the nursery's beliefs and damaging its reputation.
The approach taken by the school was criticised by the employment tribunal, finding that their behaviour in the first meeting was "rather like an overbearing mother" and that a man would not have been subjected to the same sort of questioning. The tribunal found that Ms De Groen had been subjected to direct and indirect religious discrimination, direct sex discrimination and harassment. Remedy will be determined at a future hearing.
One of the defences put forward by the school was that their action in dismissing the claimant was justified because she did not meet necessary "occupational requirements" in respect of her role. The tribunal helpfully set out a detailed analysis of the law in this area, explaining that relevant legal test:
"It is for the respondent to prove that:
- It had an ethos based on religion or belief.
- It applied a genuine occupational requirement.
- Having regard to that ethos and to the nature and context of the claimant's work:
- The requirement was an occupational requirement. Such a requirement must be legitimate and justified – an objective assessment for the tribunal. The requirement must be necessary (or at least crucial) for the claimant's personal employment. This exception should be construed narrowly. The occupational requirement must be connected directly to the claimant's work. Lifestyles and personal beliefs are almost always excluded for the scope of an occupational requirement ... the greater the interference with the claimant's human rights, the more stringent the test should be.
- The application of the requirement must be in pursuit of achieving a legitimate aim.
- The application of the requirement must be a proportionate means to achieving that aim. There should not be a blanket policy and the tribunal should ask itself whether all of the duties need to be performed by someone with that particular characteristic or whether others could "fill the gaps".
- The respondent reasonably believed that the claimant did not meet the requirement."
In this case, the tribunal was satisfied that the school had a religious ethos, and so the first part of the test was met. However, the school fell down at the second stage of the test. The tribunal found there had been no general requirement not to cohabit. Indeed, it found that the school did not actually care whether the claimant cohabited, rather that she kept quiet about it. A requirement to conceal her co-habitation could not be capable of protection since it was not a requirement that she have "a particular protected characteristic".
The case is a helpful reminder to employers of the strict legal test which applies if seeking to rely on an occupational requirement to justify discrimination. Employers should bear in mind that:
- any occupational requirement should be made clear in advertising the post and in other related documentation;
- the requirement should be reassessed periodically to ensure that it is still justifiable;
- the requirement must be essential to the post, not simply one of several important factors; and
- the requirement must relate to the specific job in question, not the nature of the employing organisation.