Balancing the rights of employers and employees in cases of religious discrimination in the workplace

The balance between the rights of employers and employees in matters of religious observance seems to have shifted slightly in favour of employers as a result of the Supreme Court decision in Lee v Ashers Baking Co Limited [2018]. This was followed in the case of Gan Menachem Hendon Ltd v De Groen [2019].

Ms De Groen was a teacher from July 2012 at a private Orthodox Jewish nursery school that adhered to the ultra-orthodox Chabad principles. Ms De Groen was dismissed on 27 July 2016 because the nursery became aware that she was cohabiting with a man outside of marriage. The view of the nursery was that cohabitation outside marriage is immoral and contrary to fundamental Jewish Law (as they understand it). The Claimant, whist adhering to Orthodox Jewish teachings, did not see cohabitation outside of marriage in this way. The nursery attempted to reinforce their views on the Claimant and asked her to lie about her living arrangements.

Before the Employment Tribunal (ET), rather than claiming unfair dismissal, Ms De Groen brought claims of unlawful discrimination on grounds of sex and on grounds of religion and/or belief.

The ET found that she had been unlawfully discriminated against on grounds of her sex and her religious beliefs. The ET considered that a male colleague would not have been treated in the same way and that the Claimant had suffered less favourable treatment as a result of her sex and religious beliefs.

The nursery appealed. There were three issues in the appeal: the claim of direct sex discrimination, harassment on grounds of sex and the issue of religious discrimination.
In relation to the issue of religious discrimination, the Employment Appeal Tribunal (EAT) concluded that the ET had misunderstood the law, stating “The conclusion that section 10(1) of the 2010 [Equality] Act prohibits less favourable treatment by an employer on the basis of its own religion or belief is wrong.”

This was a case about differing religious beliefs within a religion. It was accepted that disagreements as to whether a practice or value is an important part of the religion are entirely possible in any organised religion. The treatment of the Claimant (i.e. her dismissal) was as a result of the beliefs of the nursery which were not adhered to by the Claimant, and was not because of the Claimant’s own religious beliefs. That is, the reason they dismissed her was because she was cohabiting outside of marriage, which they considered to be against their own religious beliefs.

The EAT held that there can be no less favourable treatment because of a Claimant’s lack of a specific religious belief. Similarly, less favourable treatment has to be on the grounds of the protected characteristic of the victim and not, in this case, as a result of the religious belief of the alleged discriminator. The nursery’s appeal against the conclusion that it directly discriminated against Ms De Groen because of her religion or belief therefore succeeded.

The appeal against the finding of direct discrimination and harassment on grounds of sex, however, was dismissed. The claim was remitted to the Employment Tribunal for consideration of remedy on these elements of the claim.

The key outcome of this case is the EAT’s statement that the purpose of discrimination law is to protect a person who has a protected characteristic from less favourable treatment because of that characteristic, not to protect a person without that protected characteristic from less favourable treatment because of a protected characteristic of the discriminator. It was established that discrimination on the grounds of the alleged discriminator’s own religious belief is not enough to establish direct discrimination. In addition this case is consistent with others of a similar nature, in that Employment Tribunals are reluctant to get involved in variations of particular beliefs within a religion. It will be interesting to see how case law develops in this area.