No direct discrimination where employer's religion or belief is reason for less favourable treatment

Gan Menachem Hendon Limited v De Groen UKEAT/0059/18

Why care?

The Equality Act 2010 defines religion or belief as:

• any religion (including a lack of religion)
• any religious or philosophical belief ( including a lack of belief).

Furthermore, it states that direct discrimination occurs where A treats B less favourably than A treats (or would treat) others because of a protected characteristic – in this case, religion or belief. Direct discrimination cannot be justified; however, an employer with a particular ethos based on religion or belief may, in certain circumstances, show that being of a particular religion or belief is an occupational requirement.

In the 'gay cake' case (Lee v Ashers Baking Co Ltd (2018)), the Supreme Court held that a direct discrimination claim could only be made on the basis of the religion or belief of someone other than the alleged discriminator – in that case, the bakers were Christian.

Indirect discrimination occurs where A applies to B (who has a particular religion or belief) a provision, criterion or practice (known as a PCP) which A applies or would also apply to others not of that religion or holding that belief, but which puts (or would put) persons of B's religion or belief (and B) at a particular disadvantage (the same definition applies to a lack of religion or belief). Indirect discrimination applies unless A can show that the PCP is a proportionate means of achieving a legitimate aim.

The case

Ms de Groen was employed for four years as a teacher in a Jewish nursery run in accordance with ultra-orthodox principles. She was also Jewish, and had been brought up as an ultra-Orthodox Jew. She attended a barbecue with her boyfriend that was run by the synagogue with which the nursery was affiliated, and he let slip in conversation that they lived together.

Parents of children enrolled at the nursery learned of this accidental admission, and some complained to the nursery. Ms de Groen was called to a meeting with the headteacher and the nursery's managing director. They explained that her private life was of no concern to the nursery, but that it risked damaging the nursery's reputation in the eyes of parents. They also told Ms de Groen that, in their view:

• cohabiting outside of marriage was wrong
• having children outside of marriage was wrong
• that, as she was 23 years old, time was running out for her if she wanted to have children
• suggested that she seek counselling if she had problems with the concept of marriage.

They suggested she tell them that she was no longer living with her boyfriend (even if that was not true), which they would then make publicly known as a means of appeasing parents who were offended by her living situation.

Ms de Groen refused to lie. Two days later, she told the headteacher and managing director that she wanted a written apology and a promise she would not be harassed in that way again. They began disciplinary proceedings against her; ultimately, she was dismissed for "acting in contravention of the nursery's culture, ethos and religious beliefs" and damaging its reputation.

In response, Ms de Groen brought claims of direct sex discrimination and sexual harassment, and direct and indirect religion or belief discrimination. The Employment Tribunal upheld her claims, finding that the disciplinary process and the decision to dismiss were inextricably linked with Ms de Groen's lack of belief (that cohabitation outside marriage was wrong) and the nursery's belief.

The tribunal believed she was dismissed because she had cohabited with her boyfriend, contrary to the beliefs of the headteacher and the managing director, and because she would not tell them the lie they wanted to hear. The tribunal found that she was not dismissed because her conduct posed a threat to the nursery's reputation or economic wellbeing, nor was the dismissal due to an occupational requirement.

The tribunal also found that the nursery applied a provision, criterion or practice (PCP) of requiring the employee to be prepared to make a dishonest statement about her private life in order to remain employed. It concluded that this had given rise to particular disadvantages (including dismissal), and that this was not objectively justified.

The nursery appealed to the Employment Appeal Tribunal (EAT), which upheld the appeal in part. According to the EAT, the tribunal had erred by concluding that a direct discrimination claim could arise from an employer acting because of its own religion or belief. The Supreme Court's decision in the Ashers case (which, in fact, was not handed down until after the tribunal's decision) holds that a direct discrimination claim can only be made on the basis of the religion or belief of someone other than the discriminator.

It is an important principle of discrimination law that a discriminator's motive for less favourable treatment is immaterial. Any direct discrimination claim based on the discriminator's own protected characteristic would be doomed to fail as well, as a discriminator acting because of their own belief would act in the same way towards anyone, and there would be no difference in treatment with any comparator.

As it was not possible to characterise the tribunal's findings as a conclusion that Ms de Groen had suffered detriments and dismissal because of her own lack of belief in this particular respect, the direct religion or belief discrimination claim was unsuccessful.

Although the EAT did not need to do so (given the failure of the direct discrimination claim) it did consider the issues arising from the existence of differing religious beliefs within the same religion. The EAT held that the Equality Act could be construed as applying where both employee and employer are of the same religion, but the employee is less favourably treated because of their lack of belief on a point that the employer considers to be a tenet of the religion – here, cohabitation.

The EAT agreed with the tribunal that there was no genuine occupational requirement either for Ms de Groen not to cohabit, or to tell the parents of her views. However, it held that the tribunal had erred in finding that the nursery had applied a PCP of being "prepared to make a dishonest statement about her relationship and/or private life, in order to remain employed".

According to the EAT, there was insufficient evidence to show or infer that this was anything more than a one-off response to unusual circumstances. With no PCP, the finding of indirect religion or belief discrimination fell apart.

Even if the PCP identified by the tribunal had stood, the EAT found that the tribunal had not considered whether the PCP put Ms de Groen and other Jews who do not see cohabitation as contrary to their beliefs, at a particular disadvantage. The EAT said that, if the tribunal had done so, it must have gone on to find that any comparator group would be equally disadvantaged by being required to lie about their personal life – and again, without a particular disadvantage, the claim was doomed.

What to take away

Less favourable treatment because of the beliefs of an employer is not enough to make out a direct religion or belief claim, similar to the conclusion reached in the "gay cake" case. The ETA upheld the findings of direct discrimination and harassment (the comments about children and marriage) because of sex, and the case will return to the tribunal to decide compensation.

It is possible for a woman to harass another because of sex (as here), and employers should be clear with employees that any unwanted conduct because of a protected characteristic which has the effect of violating the recipient's dignity – or creating an offensive, intimidating or humiliating environment for them – is harassment.