It is unlawful direct discrimination on grounds of religious belief only if the unfavourable treatment of an employee is because of the employee’s belief or lack of belief, and not where the treatment is because of the discriminator’s belief (for example, that certain behaviour by any person is ‘wrong’), according to the EAT in Gan Menachem Hendon Ltd v De Groen.

A Jewish nursery teacher was dismissed by an orthodox Jewish nursery because it became known that she cohabited with her partner and she refused to lie about this in order to allow the nursery to reassure parents. On the facts the tribunal had found that this treatment was not due to her lack of belief, but rather due to the employer’s belief; it therefore could not be unlawful direct discrimination. The EAT did confirm, obiter, that the fact that a claimant and alleged discriminator are of the same religion does not prevent a claim where the less favourable treatment is due to a lack of belief on a point that the discriminator considers to be a tenet of that religion.

The claimant also lost her indirect discrimination claim as there was no ‘practice’ of requiring teachers to lie; the respondent’s suggestion that the claimant lie was simply an ad hoc measure . However, she did succeed in establishing that comments made about her needing to marry and have children were sex discrimination and harassment.

The case should be treated with some caution. It follows the ruling of the Supreme Court in Lee v Ashers Baking Co that discrimination law only prohibits treatment based on the victim’s belief and not the belief of the discriminator. However, that case concerned the provision of goods and services and some commentators have suggested that a different approach is required in the employment context based on a particular interpretation of the relevant EU Directive. Pending any ruling from a higher authority, tribunals will be bound by the EAT decision in Gan Menachem, but employers should be aware that it may well be possible to establish on the facts of a particular case that the reason for the treatment was actually the victim’s lack of holding the same belief as the discriminator, rather than the particular behaviour that lack of belief enables, or perhaps the holding by the victim of some connected belief such as it being wrong to lie. Employers should exercise caution if considering taking disciplinary action based on their own beliefs.