Dismissal for cohabiting not religious discrimination

A teacher dismissed from an orthodox Jewish nursery after it was discovered that she was living with her boyfriend had not been discriminated against on grounds of religion or belief.  

Facts

In Gan Menachem Hendon Ltd v De Groen, Ms De Groen worked as a teacher at an ultra-orthodox Jewish Nursery. She attended a Nursery BBQ with her boyfriend where they openly discussed the fact that they lived together.  A number of parents complained. The Nursery told her that whilst her private life was none of its concern, it risked damaging the Nursery’s reputation in the eyes of parents. The head teacher told her that cohabiting outside marriage was wrong and a potential solution would be for her to tell them that she was no longer living with her boyfriend so that they could tell parents that this is what she had told them.  

Ms De Groen refused to lie and the Nursery dismissed her, citing contravention of its culture, ethos and religious beliefs and damaging the Nursery’s reputation leading to potential financial detriment. 

Ms De Groen brought a number of claims, including one for direct discrimination on grounds of religion/belief. The employment tribunal upheld her claim and the Nursery appealed to the Employment Appeal Tribunal (EAT). 

Decision

The EAT upheld the Nursery’s appeal. Ms De Groen had not been treated less favourably on grounds of her religious belief but on grounds of the Nursery's religious beliefs. It ruled that it is not possible to claim direct discrimination where the alleged discriminator acts because of its own religious beliefs. The Supreme Court has made it clear that the purpose of discrimination law is to protect people with a protected characteristic from less favourable treatment because of that characteristic. A claim of direct discrimination which rests on the discriminator’s belief must fail because the discriminator would treat everyone the same and so it would not be possible to show less favourable treatment.  

The EAT rejected the Nursery’s argument that Ms De Groen could not claim religious discrimination because she too was Jewish.  It is possible to claim religious discrimination where the claimant and respondent have the same religion, but the claimant is treated less favourably because of their lack of belief on a point which the respondent considers to be a central tenet of that religion. If the root cause of Ms De Groen’s dismissal had been a disagreement about whether Judaism prohibited cohabitation outside marriage, she would have been protected against discrimination.  

Implications

It is not possible to claim direct discrimination on grounds of religion/belief where the alleged discriminator acts because of their own beliefs. It is only possible to bring a claim where the discriminator acts because of the victim’s belief or lack of belief.  The employment tribunal in this case had not found that Ms De Groen had been treated less favourably because of her beliefs or lack of belief and so her claim failed.