No Discrimination Based on Religion or Belief of Alleged Discriminator

The Employment Tribunal had held that a Jewish nursery teacher who was dismissed by her Jewish employer for cohabiting outside of marriage amounted to discrimination on the ground of religion or belief.  

Background

Zelda De Groen worked in a nursery affiliated with the Chabad Lubavitch Hasidic movement, an ultra-orthodox strand of Judaism. Ms De Groen was cohabiting with her partner. Parents of children at the nursery found out about her living arrangements and raised concerns. The Headteacher and the Managing Director at the nursery met with Ms De Groen to say that they were concerned about her living arrangements and the damage caused to the nursery's reputation. After various comments about the wrongs of living together, the nursery's Headteacher and managing director offered Ms De Groen the opportunity to tell them that she had stopped living with her boyfriend - even though they acknowledged that this would be a lie. Ms De Groen refused to lie as requested. Subsequently, the nursery dismissed her on the grounds that her living arrangements were deemed by the nursery to be incompatible with the nursery's ethos and damaging to its reputation, which they claimed could potentially lead to lost profits if parents withdrew their children.

Ms De Groen pursued various claims of discrimination and harassment, relating to both sex and religion or belief. The claims for sex discrimination and sexual harassment due to comments made to her about marriage and pregnancy were successful (and were not overturned on appeal). Her claims of direct and indirect discrimination on the grounds of religion or belief are the main concern of the appeal and this article.

Key Issue

This is one of the first applications that we have seen of Lady Hale's judgment in the Supreme Court decision in Lee v Ashers Baking Company Ltd (which is the case involving the request to produce a cake with the words 'Support Gay Marriage' printed on it). In Lady Hale's judgment, the purpose of discrimination law was to protect a person who had a protected characteristic from less favourable treatment because of that characteristic, not the protection of persons without that protected characteristic from less favourable treatment because of a protected characteristic of the discriminator. The discriminator's motive (ie their religious beliefs) for treating someone less favourably is not relevant. If someone is claiming discrimination, they must base this on a protected characteristic which they possess, or which the alleged discriminator perceives they possess, or which is possessed by an associated person.

As a result, Ms De Groen's claims that the nursery had directly discriminated against her based on their belief, that cohabiting outside of marriage was not in keeping with the Jewish faith, could not succeed and therefore the appeal against the tribunal's decision was upheld.

The appeal against the indirect discrimination on the grounds of religion or belief claim was also upheld. The nursery had not applied a formal policy of asking staff to lie about their relationship in order to remain in employment. The EAT also found that the tribunal had failed to find the necessary group disadvantage for this claim to succeed.

What This Means in the Workplace

There may be circumstances where employers have policies in place around cohabitation and marriage. An example would be religious boarding schools where it is sometimes policy for house parents to only be allowed to cohabit on the school site if they are married or in a civil partnership. As the law currently stands, such a practice would not give rise to discrimination claims based on religion or belief if that policy is based on the religion or belief of the school, and as long as the practice was applied to all.

An employer's less favourable treatment of an employee because of their (the employer's) own beliefs is not likely to be sufficient grounds for a claim of direct or indirect discrimination in relation to religion or belief, although such treatment could give rise to other risks, such as the employee resigning and claiming constructive dismissal, or succeeding with a discrimination claim based upon another protected characteristic, such as the employee's sex, as in this case.

For more information on religious discrimination, please contact Mark Stevens in our Employment Law team, on 0117 314 5401, or complete the form below.