In the case of Gan Menachem Hendon Ltd v De Groen, the Employment Appeal Tribunal (EAT) was asked if a nursery employee had suffered religious discrimination due to the fact that she was dismissed by her employer for cohabiting with her boyfriend, which went against the religious beliefs of the nursery’s management.
Gan Menachem Hendon Ltd v De Groen
Case Background
Ms Zelda De Groen, was a teacher at Gan Menachem Hendon Ltd, a nursery ran in accordance with ultra-orthodox Jewish Chabad values.
After the nursery was made aware that Ms De Groen was cohabiting with her boyfriend, the head teacher and managing director met with her to discuss the matter and the problems it posed for the business. Their view was that whilst Ms De Groen’s private life was of no concern to them personally, it could endanger the reputation of the nursery from the perspective of parents.
The head teacher and managing director suggested that Ms De Groen informed them that she no longer lived with her boyfriend, even if this was untrue, so that if any parents raised this matter with them that they could deny all knowledge. Ms De Groen did not agree to this and was ultimately dismissed by the nursery.
The dismissal letter issued by the nursery gave the following reasons for the dismissal:
- ‘Acting in contravention of the nursery’s culture, ethos and religious beliefs’; and
- Damaging the reputation of the nursery.
Ms De Groen made an ET claim of direct discrimination and harassment on the grounds of sex, and direct and indirect discrimination based on religion or belief.
ET Decision
In the initial ET proceedings in 2017, all of Ms De Groen’s claims were upheld.
The ET deemed that Ms De Groen was dismissed for cohabiting with her boyfriend, which went against the nursery’s religious values, and due to the fact that she would not lie to them about no longer living with her partner.
The ET concluded that the dismissal of Ms De Groen was not a proportionate method of achieving the legitimate aim of the nursery which would enable the nursery to justify any discrimination. Additionally, the ET ruled that Ms De Groen had been a victim of harassment on the grounds of her sex.
However, the nursery appealed against the Tribunal’s decision.
Appeal Proceedings
The EAT stated that the original ET had taken an incorrect approach as in this case it was the religion or belief of the alleged discriminator (the nursery) that was relevant, rather than a protected characteristic of the employee concerned. In accordance with existing guidance from the Supreme Court, it is not possible to frame a claim under the Equality Act on this basis.
The nursery had also raised a challenge on the basis that the case could not constitute religious discrimination because the employee concerned was herself Jewish and the difference in views was about whether Judaism excludes cohabitation of non-married couples. That challenge was rejected because in principle the law allows claims of religious discrimination where both parties are members of the same religion.
The EAT also rejected the indirect discrimination finding stating that the ad hoc measure of asking the employee to lie about her domestic arrangements could not amount to a provision, criterion or practice.
However, they upheld the original decision that she had been a victim of direct discrimination and harassment on the grounds of sex and referred the case back to the Employment Tribunal to decide the level of compensation to be awarded.
Comment
On the face of this case, most readers would suspect that it would not be permissible to impose an employer’s religious beliefs on staff and that it was not an ideal course of action for the employer to suggest to the employee that she lie to them about her domestic arrangements.
However, the legal protection from discrimination on the grounds of religion or belief covers only the religion, belief or lack of either of the alleged victim and not the alleged discriminator.
In this case, the employee was not left without a remedy because her complaints of sex discrimination and harassment were upheld.
Employers are advised to review their policies on equality and diversity to ensure that there is protection for employees’ religion or beliefs in the workplace and that their policies make it clear that issues around cohabitation or marital status are relevant to sex discrimination.
Where employers feel that their employees are behaving in contradiction to the employer’s values, religion or beliefs then the employer should take legal advice before taking any action on this.
How Nelsons Can Help
Laura Kearsley is specialist Employment Solicitor at Nelsons.
For further information or to comment on this article, please contact a member of our Employment Law team in Derby, Leicester and Nottingham on 0800 024 1976 or via our online form.