Tue 26 Feb 2019

Religious discrimination - whose belief is it anyway?

The EAT follows the "gay cake case" in finding that there is no discrimination against a claimant when the religious beliefs being breached are those of the employer.

In Gan Menachem Hendon Limited v Ms Zelda de Groen the EAT overturned a decision of the employment tribunal that an employer acting because of his own religion or belief had discriminated against its employee.  

Gan Menachem Hendon Limited ("GMH") ran a Jewish nursery that Ms de Groen was employed at as a teacher and team leader.  The nursery was run in accordance with ultra-orthodox principles.  Ms de Groen had been dismissed for some other substantial reason after being accused of acting in contravention of the nursery's culture, ethos and religious beliefs; of damaging the nursery's reputation and potentially causing financial detriment to the nursery. This was as a result of her attending a communal BBQ where she admitted to living with her boyfriend.  According to the allegations against Ms de Groen, her admission had resulted in third party pressure from parents to dismiss her.  

Before the employment tribunal Ms de Groen successfully claimed direct discrimination on the grounds of sex and religious belief, indirect discrimination on the grounds of religious belief and harassment on the grounds of sex.  The EAT upheld the findings of sex discrimination and harassment but overturned the finding of indirect discrimination on grounds of religion and belief on the basis of technical arguments.  The appeal in relation to the direct religious discrimination claim centred around whether the claim could be sustained simply on the basis that an employer acted because of his own religious belief rather than the beliefs of the dismissed employee.  

The EAT held that the conclusion of the tribunal that the Equality Act prohibits less favourable treatment by an employer on the basis of its own religion or belief was wrong.  In reaching its decision the EAT applied the reasoning of Baroness Hale in Lee v Ashers Bakery Co Ltd (the "gay cake case") that the purpose of discrimination law was the protection of a person who had a protected characteristic from less favourable treatment because of that characteristic, not the protection of persons without that characteristic from less favourable treatment because of a protected characteristic of the discriminator.  Such a claim, which rests on the characteristic of the discriminator would always be "doomed to failure" because any comparison between the person receiving the less favourable treatment and other persons would always produce the result that there was no difference in treatment because a discriminator acting on grounds of his own religious belief would act the same way irrespective of who was affected. 

Also of interest from this case is an argument that was presented that the requirement placed on Ms de Groen not to live with her boyfriend was in accordance with the "ethos" of the nursery.  The evidence showed that during a meeting prior to the dismissal management at the nursery had said to Ms de Groen that they were willing to overlook the issue if she told them she was no longer living with her boyfriend, even if that was a lie.  In other words, despite claiming to run the nursery according to a strict religious ethos, in fact management did not appear to care whether or not Ms de Groen lived with her boyfriend as they were content to knowingly accept a lie about it to bring the matter to a close.  A good example of an employer undermining a potential defence to a claim of discrimination long before any tribunal application had been filled in.  

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