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Naturally, you may think of brining a discrimination claim. However, the Employment Appeal Tribunal (EAT) in the case of Gan Menachem Hendon Limited v De Groen established that the employee was not directly discriminated against because of her religion or belief when she was dismissed on discovery that she was cohabiting with her boyfriend. Such a practice conflicted with the employer’s (a nursery) strict orthodox beliefs.
The claimant was employed as a teacher in a Jewish nursery, which followed strict-orthodox Chabad (also known as Lubavitch) principles. It transpired that the employer found out that she was living with her boyfriend. Consequently, she was invited to attend a meeting with the nursery’s head teacher and managing director and she told (amongst other things) that she risked damaging the nursery’s reputation in the eyes of the pupils’ parents. During the meeting, she was also told by the nursery’s head teacher and managing director that cohabitation outside of marriage was wrong.
Following the claimant’s refusal to rectify her living circumstances or advise her employer (even if untrue) that she was no longer cohabiting outside marriage, she was dismissed.
The claimant then brought claims of direct discrimination and harassment related to her sex, and direct and indirect discrimination related to her religion or belief. The Employment Tribunal upheld all of her claims. Her employer subsequently appealed to the EAT.
The EAT allowed the employer’s appeal against the finding of direct discrimination because of religion or belief. The Equality Act 2010 (the Act) does not extend the protected characteristic of religion or belief to the religion or belief of the alleged discriminator (in this case, the claimant’s employer). The EAT was clear that the purpose of the Act is to protect an individual with a protected characteristic from less favourable treatment because of that characteristic (not that of the alleged discriminator).
Of great significance, the EAT concluded that any direct discrimination claims that rested on a discriminator’s protected characteristic would be destined to fail because any comparison would always show that there had been no difference in treatment (on the basis that a discriminator acting on the grounds of his or her own political or religious belief would act in the same way regardless of who was affected).
It is also worthwhile noting that the EAT considered that the claimant had not been discriminated against because of her lack of belief (as may be argued in other cases). It found that the alleged discriminators had acted on the basis of their own beliefs, not the claimant’s lack of belief.
Conclusively, the EAT also allowed the employer’s appeal against the finding of indirect religion or belief discrimination, but dismissed the appeals against findings of direct sex discrimination and harassment.
This case goes some way to better illustrate the scope of discrimination law. In particular, following the Ashers Baking Company Limited case, it helps us understand that whilst it may feel ‘unfair’ to an employee, it is the employee’s protected characteristic that is relevant when determining whether discrimination has occurred or not (as opposed to the discriminator’s).
If you would like further advice, please contact a member of our Employment team.