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Case update (3): Discrimination – Whose religion or belief?

Summary: Was an employee directly discriminated against because of her religion or belief when she was dismissed on discovery that she was cohabiting with her boyfriend?

No, says the EAT in Gan Menachem Hendon Ltd -v- de Groen available here.

Facts:  Ms de Groen was a teacher at the Gan Menachem Hendon Ltd nursery, which followed ultra-orthodox Chabad principles. Ms de Groen went to a work-related barbecue with her partner and openly discussed that they live together. Ms de Groen was called into a meeting with the nursery’s headteacher and managing director and told she risked damaging the nursery’s reputation in the eyes of the pupils’ parents. Ms de Groen was told that while her private life was of no concern to the nursery, could she please say that she no longer lived with her partner so that they could relay this to any concerned parties. Ms de Groen refused to lie and asked for an apology.

Following a second meeting and a disciplinary hearing held in Ms de Groen’s absence, she was dismissed for allegedly presenting herself in a manner that contravened the nursery’s ethos, culture and religious beliefs.

Ms de Groen brought claims for both direct and indirect discrimination on the grounds of sex, religion and belief. Ms de Groen was successful in all her claims at the Tribunal. The nursery appealed.

The EAT upheld Ms de Groen’s claims for sex discrimination and harassment.  However, the EAT overturned the decision in relation to religion and belief. The Equality Act 2010 does not extend the protected characteristic of religion or belief to the religion or belief of the alleged discriminator (the claimant’s employer). The EAT was clear that the purpose of the Equality Act is to protect an individual with a protected characteristic from less favourable treatment because of that characteristic (not that of the alleged discriminator).

The nursery would have treated any employee in the same way, regardless of their particular religious views or beliefs. It was not the religion or beliefs of Ms de Groen that resulted in the treatment.  A claim of unlawful discrimination on the grounds of religion and belief must be based on a protected characteristic which the claimant possesses, which the alleged discriminator believes they possess, or which a person associated with the claimant possesses.

Implications: This is a useful confirmation by the EAT that it is the employee’s protected characteristic (not that of the alleged discriminator) that is relevant when determining whether discrimination has occurred or not.  Helpfully, the EAT also confirmed that the Act can protect individuals of the same religion as their alleged discriminators where there is a difference of opinion about the application and practice of that religion.

However, it is worth noting that Ms de Groen still won her claims of direct sex discrimination and harassment.  This is a good reminder to employers to ensure that they respect their employee’s rights and values, regardless of their own particular religious opinions and practices.

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