In the case of Gan Menachem Hendon Limited v De Groen, the Employment Appeal Tribunal (EAT) established that an employee was not directly discriminated against because of her religion or belief when she was dismissed on discovery that she was cohabiting with her boyfriend. This practice conflicted with the ultra-orthodox beliefs of the nursery’s management.

In this short update, we report on the case and why less favourable treatment by an employer on the basis of the employer’s own religion or belief does not establish direct discrimination.

Facts

The claimant was employed as a teacher in a Jewish nursery, which followed ultra-orthodox Chabad principles. It came to her employer’s attention that she was cohabiting with her boyfriend. As a result, she was called into a meeting with the nursery’s headteacher and managing director and told she risked damaging the nursery’s reputation in the eyes of the pupils’ parents (amongst other things). During the meeting, the view was also expressed to her that cohabitation outside of marriage was wrong.

The claimant was advised that, if she told her employer that she was no longer living with her boyfriend (even if untrue), it might be possible for her employment to continue on the basis that the nursery could tell parents that she had told them she was no longer cohabiting outside of marriage. When the claimant refused to do this, and effectively to lie, she was dismissed.

The claimant brought claims of direct discrimination and harassment related to her sex, and direct and indirect discrimination related to her religion or belief. The tribunal upheld all of her claims. Her employer subsequently appealed to the EAT.

EAT Decision

The EAT allowed the employer’s appeal against the finding of direct discrimination because of religion or belief. The Equality Act 2010 (the Act) does not extend the protected characteristic of religion or belief to the religion or belief of the alleged discriminator (the claimant’s employer). The EAT was clear that the purpose of the Act is to protect an individual with a protected characteristic from less favourable treatment because of that characteristic (not that of the alleged discriminator).

Crucially, the EAT concluded that any direct discrimination claims that rested on a discriminator’s protected characteristic would be destined to fail because any comparison would always show that there had been no difference in treatment (on the basis that a discriminator acting on the grounds of his or her own political or religious belief would act in the same way regardless of who was affected).

In addition, the EAT considered that the claimant had not been discriminated against because of her lack of belief. It found that the alleged discriminators had acted on the basis of their own beliefs, not the claimant’s lack of belief. The EAT went on to allow the employer’s appeal against the finding of indirect religion or belief discrimination, but to dismiss the appeals against findings of direct sex discrimination and harassment.

Comment

Following the Supreme Court decision in Lee v Ashers Baking Company Limited, the case further addresses the scope of discrimination law. Whilst something may feel ‘unfair’ to an employee, the EAT has confirmed that it is the employee’s protected characteristic (not that of the alleged discriminator) that is relevant when determining whether discrimination has occurred or not

Helpfully, the EAT also confirmed that the Act can protect individuals of the same religion as their alleged discriminators where there is a difference of opinion about the application and practice of that religion.