Gan Menachem Hendon Ltd v De Groen, UKEAT/0059/18
The claimant was employed as a teacher in an Orthodox Jewish nursery. She was dismissed after it transpired that she cohabited with her boyfriend, which conflicted with the orthodox principles of the nursery and was considered to pose a risk to the nursery’s reputation. The head teacher and managing director of the nursery had called the claimant into a meeting at which they lectured her about the wrongs of living in sin and getting pregnant outside marriage. They also expressed concern that at the age of 23 she was leaving it late to get married. The claimant was asked to tell the nursery managers that she no longer lived with her boyfriend (even if this was untrue) so they could tell the parents who used the nursery that she had informed them of this. The claimant was eventually dismissed after refusing to do as the managers had requested.
She brought claims of direct discrimination and harassment on the ground of sex, and direct and indirect discrimination on the ground of religion or belief. An employment tribunal upheld her claims. It found that the disciplinary process and the decision to dismiss were inextricably linked with the claimant’s lack of belief. Although she was Jewish, she did not share the same views as her employer in relation to cohabitation.
The nursery appealed the tribunal’s decision to the EAT.
The EAT has upheld the nursery’s appeal. In relation to the claim of direct religion or belief discrimination, the tribunal had erred by assuming that protection extended to the religion or belief of the alleged perpetrator. Since the 2018 decision of the Supreme Court in Lee v Ashers Baking Company Ltd (the gay cake case), it was clear that such a claim is not possible. Under the Equality Act 2010, those with a protected characteristic are given protection from less favourable treatment. There was no evidence that the claimant’s treatment had been as a result of her lack of belief (which is protected under the Act); it arose because of the managers’ own beliefs. The employer would have treated anyone in the claimant’s situation in the same way, regardless of their personal characteristics or beliefs.
The nursery’s appeal against the finding of indirect discrimination on the grounds of religion or belief was also upheld. The tribunal had failed to properly consider whether the claimant’s treatment amounted to a ‘practice’ capable of establishing a PCP (provision, criterion or practice) as required under the Equality Act 2010. There was no evidence to support a conclusion that any such PCP existed, meaning that the indirect discrimination claim had to fail.
The nursery’s appeal against the tribunal’s finding of sex discrimination failed.
This decision is one of the first reported decisions of the EAT following the Supreme Court’s decision in the Ashers bakery case. In that case it was established that discrimination on the grounds of the alleged discriminator’s own religious belief is not enough to establish a claim of direct discrimination. The EAT’s decision here demonstrates how the Ashers case is likely to restrict claims for direct discrimination on the grounds of religion or belief in the workplace.
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This article is from the February 2019 issue of Employment and Immigration Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at February 2019.
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