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Religious Discrimination

If a teacher at an ultra-orthodox Jewish Nursery refused to cover up the fact she was living with her boyfriend and was dismissed, could it amount to direct discrimination because of religion or belief?

Gan Menachem Hendon Limited v Ms. Zelda de Groen

Ms. de Groen was employed as a teacher in an ultra-orthodox Nursery school from July 2012 until dismissed by letter dated 27 July 2016.

In May 2016 Ms. de Groen attended a barbeque with her boyfriend, to celebrate a Jewish holy day. Some trustees of the Nursery and parents of students were present. It was revealed during conversation that they lived together, which is in contravention of the beliefs of ultra-orthodox Jews.

Ms. de Groen was subsequently invited to a meeting with her employer and asked to confirm that she no longer lived with her boyfriend, so that the Nursery could tell those concerned that this is what they had been told. Ms. de Groen refused to lie, asked for an apology and instead was dismissed. She was also told that at the age of 23, time was passing for her to have children and that if she had problems with the idea of marriage she should seek counselling.

Ms. De Groen brought claims for direct and indirect sex discrimination, harassment and direct religion/belief discrimination. She was initially successful in all her claims at an Employment Tribunal. The nursery appealed. 

Decision 

Although her claims of direct sex discrimination and harassment were upheld on appeal, the decision in relation to religion/belief was overturned.

In the circumstances, Ms. De Groen had been treated less favourably by reason of the Nursery’s religious beliefs, not because of her own religious beliefs.  The rationale for this decision is that the nursery would notionally have treated anyone in the same way, irrespective of the individual’s particular religious views or beliefs.

The EAT applied the recent Supreme Court decision of Lee v Ashers Baking Company Limited, in which it was held not to be discrimination when a cake company owned and operated by devout Christians refused to provide a cake with a message in support of gay marriage.

Comment

This area of discrimination law is now becoming increasingly settled, with cases finding that a discrimination claim will not succeed if it based upon the religion or belief of the discriminator rather than the ‘victim’.

Nevertheless, in an employment context there can always be a reasonable amount of crossover between direct discrimination and harassment, as well as other protected characteristics. In this case the nursery’s managers, expressing their personal devout views, backed themselves into harassment and sex discrimination claims by casting aspersions about the Claimant’s plans for marriage and children.

Employers need to have robust equal opportunities policies in place to ensure that staff know what is and what is not acceptable, irrespective of their own particular religious opinions.

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