The Equality Act 2010 outlaws discrimination on the ground of religion or belief. In Gan Menachem Hendon Ltd v de Groen, the Employment Appeal Tribunal (EAT) held, however, that Ms de Groen had not been less favourably treated by the nursery because of her religion when it dismissed her because she was cohabiting outside of marriage, contravening its religious ethos.
Ms de Groen worked as a teacher at a Jewish nursery which was run in accordance with ultra-orthodox principles. At a barbeque organised by a synagogue affiliated to the nursery, her boyfriend mentioned in the course of conversation with one of the directors that he and Ms de Groen lived together. This contravened the ethos of the nursery which took the view that co-habitation outside marriage was wrong,
At a subsequent meeting with the headteacher and the managing director who made clear that her personal life was her own concern, Ms de Groen was asked to confirm that she was no longer living with her boyfriend. Although they knew that she still was, the rationale behind the request was that it would allow nursery staff to inform parents that this was what Ms de Groen had told them. Although they were effectively asking her to lie, they made clear that it was the only way to avoid disciplinary action. Ms de Groen not only refused, but asked for a written apology and confirmation that she would not be harassed again in this way.
She was then dismissed for acting in contravention of the nursery's culture, ethos and religious beliefs and for damaging its reputation which could potentially impact on the nursery’s financial viability in the event that parents removed their children from its care. Ms de Groen brought a number of claims, including one claiming discrimination on the ground of religion or belief.
The tribunal agreed with Ms de Groen, holding that she had not been dismissed because her conduct posed a threat to the economic wellbeing of the nursery but rather because she was co-habiting and because she would not agree to say that she was no longer doing so.
As such, she had been less favourably treated not only because of the lack of her religious beliefs but also because of the nursery's religious beliefs about co-habitation and because she would not lie and say that she was no longer cohabiting.
The tribunal also found that the nursery applied a PCP of requiring Ms de Groen to be prepared to make a dishonest statement about her private life so that she could remain employed.
The nursery appealed against the decision.
However, the EAT held that, following the decision of the Supreme Court in Lee v Ashers Baking Co Ltd (weekly LELR 598), the tribunal’s conclusion that Ms de Groen had been less favourably treated by the nursery on the basis of its own religion or belief could not be sustained.
It was clear from Lee that the purpose of discrimination law was to ensure that people who had a protected characteristic were not treated less favourably because of that characteristic. It was not, therefore, to ensure that people were not treated less favourably because of a protected characteristic of the discriminator. This ensured that the motive of the discriminator in terms of their religious beliefs remained irrelevant.
In this case, the nursery acted because of its own beliefs, and Ms De Groen's non-compliance with those beliefs. The tribunal’s conclusion that it acted because of Ms De Groen's belief (or rather, what she did not believe) was therefore “an entirely implausible conclusion”.
Nor did it constitute indirect discrimination because in order to constitute a practice there would have to be some element of repetition. In this case, the request to be dishonest was an ad hoc measure and could not therefore amount to a practice. The EAT therefore held there was insufficient evidence to conclude that there was a provision, criterion or practice that employees "… be prepared to make a dishonest statement about their relationship and/or private life, in order to remain employed". In addition the tribunal had failed to address the requirement for Ms de Groen to suffer a particular disadvantage in comparison to those who did not share her particular protected characteristic.
This case reaffirms that less favourable treatment because of the employer’s own beliefs is not enough to succeed in a direct religious or belief discrimination claim. The discriminating employer acting on their own belief would treat everyone not sharing that belief in the same way and there would therefore be no difference in treatment with any comparator.