Dismissal for cohabiting was not direct religious belief discrimination


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The Employment Appeal Tribunal (EAT) has held in Gan Menachem Hendon Ltd v De Groen that a nursery worker who was dismissed when it was discovered that she was cohabiting with her boyfriend (in conflict with the religious beliefs of the nursery management) did not suffer direct discrimination on the ground of religion or belief.

DG was employed as a teacher in a Jewish nursery which was run in accordance with ultra-orthodox Chabad principles, and was dismissed after it became known that she was cohabiting with her boyfriend. Prior to her dismissal a meeting took place in which the nursery's managing director told DG that her private life risked damaging the nursery's reputation in the eyes of the parents, and suggested that a way round this would be for DG to say that she was no longer living with her boyfriend, even if that was not true. DG refused to do this, and her dismissal letter gave a number of grounds for dismissal, including "acting in contravention of the nursery's culture, ethos and religious beliefs" and damaging the nursery's reputation.

The tribunal upheld DG's claims for direct discrimination and harassment on the ground of sex, and direct and indirect discrimination on the ground of religion or belief. The EAT allowed an appeal against the finding of direct religion or belief discrimination. The tribunal had erred in assuming that the definition of religion or belief extends to the religion or belief of the alleged discriminator. The EAT also held that it was not possible to find that DG had suffered detriments and dismissal because of her lack of belief. Although the tribunal had found that the management of the nursery were trying to impose their own beliefs on DG, that only meant that they acted because of their own beliefs and not because of DG's lack of belief.

The EAT also allowed an appeal against the finding of indirect religion or belief discrimination as the tribunal had failed to address the question of whether the nursery management's treatment of DG amounted to a "practice" capable of establishing a PCP. As no viable PCP was identified, the indirect discrimination claim had to fail.

Take note: This confirms that less favourable treatment because of the beliefs of an employer will not be enough to make out a direct religion or belief discrimination claim. This was explored most recently in Lee v McArthur and ors (the "gay cake case") where it was held that the less favourable treatment in the bakery's refusal to ice a message on a cake in support of gay marriage was "afforded to the message not to the man".

This article is taken from HR Law - March 2019.

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