In Gan Menachem Hendon Ltd -v- de Groen,the Employment Appeal Tribunal (EAT) held that dismissing an employee, who refused to lie about living with her boyfriend, from a nursery that ran in accordance with ultra-orthodox Jewish values did not amount to discrimination on the grounds of religion or belief.
Ms de Groen was a teacher at the Gan Menachem Hendon Ltd nursery. She went to a work-related barbecue with her partner and openly discussed that they live together. At a subsequent meeting with nursery management she was told that while her private life was of no concern to the nursery could she please say that she no longer lived with her partner, despite that being untrue, so that they could relay this to any concerned parties. Ms de Groen refused to lie and asked for an apology.
Following a second meeting and a disciplinary hearing held in Ms de Groen’s absence, she was dismissed for allegedly presenting herself in a manner that contravened the nursery’s ethos, culture and religious beliefs.
Ms de Groen brought claims for both direct and indirect discrimination on the grounds of sex, religion and belief. Ms de Groen was successful in all her claims at the Employment Tribunal (ET). The nursery appealed.
Although her claims of direct sex discrimination and harassment were upheld on appeal, the decision in relation to religion and belief was overturned.
The EAT held that the ET had incorrectly concluded that the nursery, acting on the basis of its own religion and beliefs, had discriminated against Ms de Groen. The EAT applied Lady Hale’s judgment in the recent Supreme Court decision of Lee v. Ashers Baking Company Limited. The nursery would have treated any employee in the same way, regardless of their particular religious views or beliefs. It was not the religion or beliefs of Ms de Groen that resulted in the treatment.
It has long been settled that the discriminator’s motive (in this case their own religious belief) for treating an individual less favourably is not relevant. A claim of unlawful discrimination on the grounds of religion and belief must be based on a protected characteristic which the claimant possesses, which the alleged discriminator believes they possess, or which a person associated with the claimant possesses.
Implications for employers
Notwithstanding this decision employers should not assume that adopting the same approach as the nursery in this case will provide a safe defence. Ms de Groen still won her claims of direct sex discrimination and harassment. In many cases a claimant might also be able to establish successfully that the less favourable treatment resulted from differences in religious views. Employers should therefore keep their equal opportunities policies under review and ensure that they are aware of accepted practices in the workplace, regardless of their own particular religious opinions and practices.
Employers should be very cautious when considering taking action against employees who may be behaving in ways which are not consistent with the employer’s beliefs, values or opinions.