The Employment Appeal Tribunal has held in Gan Menachem Hendon Ltd v De Groen, UKEAT/0059/18 that a dismissal for co-habiting with a partner does not amount to direct religious or belief discrimination.
Ms De Groen was employed as a teacher in an ultra-orthodox Jewish nursery run by Gan Menachem Hendon Ltd. At a work-related barbeque organised by the synagogue, Ms De Groen’s boyfriend disclosed to one of the Nursery’s Directors that they were co-habiting outside of marriage. Over a month later, Ms De Groen was summoned to an impromptu meeting with the Headteacher and Managing Director of the Nursery and informed that whilst her private life was of no direct concern; the new information risked damaging the Nursery’s reputation in the eyes of the parents as co-habiting outside of marriage was in direct contravention of ultra-orthodox Chabad principles. It was then suggested that a potential solution would be for Ms De Groen to publically “confirm” that she did not live with her boyfriend to alleviate the parents’ concerns. Having refused to lie, Ms De Groen was later invited to attend a formal disciplinary hearing before being dismissed for “acting in contravention of the nursery’s culture, ethos and religious beliefs” and damaging the nursery’s reputation. Ms de Groen brought claims for both direct and indirect discrimination on the grounds of sex, religion and belief.
Whilst all of Ms De Groen’s claims were successful at first instance, the Employment Appeal Tribunal only upheld her claims in relation to harassment and sex discrimination on appeal. Applying Lady Hale’s Supreme Court judgment in Lee v Ashers Baking Company Ltd, the Employment Appeal Tribunal held that less favourable treatment because of the beliefs of the employer is not enough to make out a direct religious or belief discrimination case because the employer is acting on their own religious (or political) beliefs and would behave in the same way towards any person regardless of their religion. In this scenario, therefore, the nursery would have dismissed any employee for co-habiting outside of marriage regardless of their religious beliefs (or lack of). Ms De Groen also failed in her indirect discrimination claim as no formal policy requiring her “to make a dishonest statement about [her] relationship and/or private life in order to remain employed” had been put in place – it was just an ad hoc decision.
An interesting point from the case is that the Employment Appeal Tribunal confirmed that religious discrimination can apply where both parties are of the same religion (but with differing religious beliefs). The principles in Lee v Ashers are still relatively new and employers should therefore still exercise caution in dismissing any employees on the basis of the business owners’ religious or other beliefs, particularly as there is no cap on the level of awards in discrimination claims.