In the case of Gan Menachem Hendon Ltd v De Groen, the Employment Appeal Tribunal (“EAT”) has held that a Nursery worker was not subjected to direct discrimination on the ground of religion or belief when she was dismissed from a Jewish nursery for cohabiting with her boyfriend.
The Claimant, Zelda De Groen, was employed as a teacher by the Respondent, a Jewish nursery which was run in accordance with ultra-orthodox Chabad principles.
The Claimant attended a barbeque with her boyfriend organised by a synagogue affiliated with the nursery. Present at the barbeque were some of the parents of the children who attended the nursery as well as one of the nursery’s directors. Whilst at the barbeque the Claimant’s boyfriend mentioned to the nursery’s director that he was living with the Claimant. This was passed onto the nursery’s head teacher as the nursery regarded co-habitation before marriage as being contrary to its faith.
Without prior notice, the Claimant was asked to attend a meeting with the nursery’s head teacher and managing director. During this meeting the head teacher and managing director expressed the view that co-habitation outside of marriage was wrong, that having children outside of marriage was wrong, that (at age 23) time was passing for the Claimant to have children, and that if the Claimant had problems with the idea of marriage then she should seek counselling. The Claimant was told that her private life was of no concern to the nursery, however she needed to lie and confirm that she was no longer living with her boyfriend so that the nursery could tell the parents that this was that they had been told.
After this initial meeting, a further meeting was held whereby the Claimant asked the nursery’s head teacher and managing director for a written apology and a promise that she would not be harassed again. However, the Claimant did not receive an apology but instead was handed a letter inviting her to a formal disciplinary hearing. The letter referred to the nursery being “under third party pressure from parents whom are threatening to remove their children” and described the Claimant as having a detrimental impact on the reputation of the business and its credibility as a religious nursery.
The Claimant was eventually dismissed. The dismissal letter specified a number of reasons for dismissal which included the Claimant having acted in contravention of the nursery’s culture, ethos and religious beliefs. The Claimant brought claims of direct discrimination and harassment on the ground of sex and direct and indirect discrimination on the ground of religion or belief.
The Employment Tribunal upheld the Claimant’s claims, however the nursery appealed the decision to the EAT and a judgment was issued in the nursery’s favour with regards to religion or belief discrimination.
The EAT held that the Employment Tribunal had erred in their approach when applying section 10 of the Equality Act 2010, which defines ‘religion or belief’ as a protected characteristic. Protection under the Act does not extend to the religion or belief of the alleged discriminator, the Act only provides protection to those with a protected characteristic from less favourable treatment because of that characteristic. In other words, the nursery acted in accordance with its own religion and belief and therefore the Claimant was not subjected to any form of discrimination.
The Claimant’s indirect discrimination claim also failed because the EAT held that the proposal put forward by the nursery’s head teacher and managing director for the Claimant to lie did not amount to a provision, criterion or practice but was instead an ad hoc measure.
The EAT did however dismiss the nursery’s appeals regarding the findings of sex discrimination and harassment. These claims will be heard by the Employment Tribunal to discuss remedy.
Despite the outcome of this case, employers should ensure that they do not impose discriminatory practices in the workplace. Employers should carefully check their policies regarding equality and diversity and update their staff handbooks accordingly.
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