Gan Menachem Hendon Ltd v De Groen: Discrimination - religious organisation

The Employment Appeal Tribunal (EAT) has found that direct discrimination claims resting on the discriminator’s protected characteristic will not succeed at tribunals.  

Direct religion or belief discrimination takes place where an employer treats an employee less favourably than they would treat others because of their religion or belief (or lack of). Indirect discrimination occurs when an organisation applies a provision, criterion or practice (PCP) that places a person with a protected characteristic, such as religion or belief or gender, at a disadvantage when compared to others on the basis of this characteristic.

However, the organisation may be able to justify the PCP if they can demonstrate it is a proportionate means of achieving a legitimate aim.

FACTS

The claimant was a team leader at a Jewish nursery that was run in accordance with ultra-orthodox Chabad principles. She attended a BBQ with her boyfriend that was hosted by a synagogue affiliated with the nursery, within which several parents of the nursery’s children were present alongside one of its directors. This director struck up a conversation with the claimant’s boyfriend, who remarked that he lived with the claimant despite the fact they were not married.

A meeting was later held with the claimant. During the meeting, they asked her to confirm that she was no longer living with her boyfriend so that they could tell parents of the children at the nursery that this is what the claimant had told them, essentially asking her to lie. Management clearly expressed the view that it felt cohabitation was wrong. When the claimant refused to lie, she was invited to a disciplinary hearing for allegations that she was living with her boyfriend.

The nursey stated that it was coming under third party pressure from parents that they would remove their child from the nursery. It also outlined that the claimant was having a detrimental impact on the reputation of the organisation and its credibility as a religious nursery. The claimant was dismissed and later brought claims to the employment tribunal (ET) for direct discrimination and harassment related to her sex, and direct and indirect discrimination related to her religion or belief.

ET

The tribunal initially upheld all of her claims, finding that the claimant had been dismissed because she cohabited contrary to the nursery’s religious beliefs and she would not lie about it, and not because she posed some threat to the nursery overall. The nursery appealed against the tribunal’s decision to the Employment Appeal Tribunal.

EAT

The EAT upheld the sex discrimination claim, finding that the gender of the employee had been a significant influence over their treatment of her. Despite this, they overturned the decision that the claimant had been discriminated against because of her religion. This was because the reason for her treatment was not her religion; it was the religion of the nursery’s management team.

The EAT explained that the Equality Act 2010 did not extend the protected characteristic of religion or belief to that of an alleged discriminator; its purpose is to protect an individual with a protected characteristic with less favourable treatment because of that characteristic. Crucially, the EAT concluded that any direct discrimination claims that rested on a discriminator’s protected characteristic would be destined to fail.

When applied to this case, the EAT explained that any comparator that the employee may choose to identify would have been subjected to the same treatment about cohabitation and the refusal to lie about it. They also confirmed that the Act can protect individuals of the same religion as their alleged discriminators where there is a difference of opinion about the application and practice of that religion.

Note for employers 

This case highlights that direct discrimination will not be found to have occurred where less favourable treatment occurs because of an organisation’s religious beliefs, rather than the employee’s beliefs, because the organisation will treat a real or hypothetical comparator in the same way regardless of what personal characteristics they hold. That said, this case also highlights the difficulty of taking action against an employee when this can be linked to their religion or belief. Organisations are able to discipline an employee for the way in which they manifest their religious beliefs if their conduct is against its rules, however drawing this line can be difficult.

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