Employment Law Speed Read – 18/02/19
18th February, 2019
In Gan Menachem Hendon Ltd v De Groen, the Employment Appeal Tribunal considered whether an employee who worked at an ultra-orthodox Jewish Nursery had been unlawfully discriminated against when she was dismissed after it was revealed that she was cohabiting with her boyfriend.
Facts
Ms De Groen was employed as a nursery teacher for Gan Menachem Hendon Ltd from July 2012. The nursery was run in accordance with ultra-orthodox Jewish principles.
In May 2016, Ms De Groen attended a barbeque that had been organised by a synagogue affiliated with the nursery. Ms De Groen attended the barbeque with her boyfriend who revealed, in the presence of parents and one of the nursery’s directors, that the couple were cohabiting. Cohabitation outside of marriage is considered to be impermissible by many ultra-orthodox Jews.
On 27 June 2016, Ms De Groen was invited to attend a meeting with the Headteacher and the Managing Director of the nursery. During the meeting, many aspects of Ms De Groen’s personal life were discussed including cohabitation, marriage and children. Ms De Groen was informed that cohabitation and having children outside of marriage was ‘wrong’. Ms De Groen was also asked to confirm that she no longer lived with her boyfriend so that the nursery could inform any concerned parents. However, Ms De Groen refused.
Following a further meeting, Ms De Groen was invited to attend a disciplinary hearing on the basis that she had acted in contravention of the nursery’s culture, ethos and religious beliefs and further, that she had damaged the nursery’s reputation. Ms De Groen was dismissed by letter dated 27 July 2016.
Ms De Groen brought a claim to the Employment Tribunal (ET) alleging that she had been discriminated against on the grounds of sex and religion or belief. Ms De Groen brought claims of direct discrimination, indirect discrimination and harassment.
Employment Tribunal
The ET found in favour of Ms De Groen and held that she had been unlawfully discriminated against on the grounds of sex and religion or belief. With regard to the allegation of direct discrimination on the grounds of religion or belief, the ET held that the decision to dismiss Ms De Groen was inextricably linked to Ms De Groen’s lack of belief that cohabitation outside of marriage was wrong.
When considering the direct sex discrimination claim, the ET were satisfied that Ms De Groen’s sex was related to the decision to call the meeting in May 2016, and that many of the comments and questions were made and asked because of Ms De Groen’s sex.
Gan Menachem Hendon Ltd appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal
The claims of sex discrimination were upheld on appeal, however the EAT found in favour of Gan Menachem Hendon Ltd with regards to Ms De Groen’s claims of discrimination on the grounds of religion or belief.
The EAT applied the case of Lee v Ashers Baking Co. Limited and held that the ET had erred in finding that a direct discrimination claim could arise from the employer acting by reason of its own religion or belief. The EAT highlighted that the purpose of discrimination law is to protect those with protected characteristics and further, the motive of the discriminator is immaterial.
Comment
This case emphasises that less favourable treatment because of the beliefs of an employer is insufficient to successfully bring a claim of direct discrimination on the grounds of religion or belief.
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