The decision of a Watford employment tribunal in the case of Miss De Groen vs Gan Menachem Hendon Nursery which ruled that Ms De Groen was discriminated against by her employers (Gan Menachem Hendon Nursery) based on her sex and religious belief has been upturned by the Employment Appeal Tribunal.
Problems started when Ms De Groen attended a barbecue with her boyfriend who she was at that time, co-habiting with. In a conversation between the boyfriend, one of the nursery’s directors and some parents whose wards attended the nursery, the boyfriend innocently mentioned the fact that they were co-habitating together. Ms. Groen was called for a meeting with the Managing Director of the nursery, Dina Toron and the Head Teacher, Miriam Lieberman.
Ms. Groen learnt in the meeting that although her private life was not the concern of her employers, she had to deny co-habitation with her boyfriend so that they could relay that fact to the concerned parties which in this case were the parents of the children at the nursery. When she refused to deny the allegation, her appointment was terminated because according to the directors, the Gan Menachem nursery was Jewish and affiliated to the Chabad Lubavitch Movement. This meant that, co-habitation between unmarried people was against their beliefs and ethics and this was in accordance with their “ultra-orthodox” principles.
Ms Groen claimed that she had been advised by Toron and Lieberman to receive counselling because it appeared she had a problem with marriage. They claimed that being a woman, who was 23 years old, unmarried and without children, cohabitation with her boyfriend was wrong and they felt she should get married as she was not getting any younger.
Consequent to these and her refusal to deny cohabitation with her boyfriend, Ms. Groen was sacked via a letter on 27 July, 2016. The letter stated that Ms. Groen behaved in “such a way to prove that she had acted and had displayed characters which was in contradiction to the nursey’s culture, ethos and religious beliefs” and this has led to complaints from parents which is damaging to the reputation of the nursery school.
The Watford employment tribunal made its ruling, finding that Toron and Lieberman wanted Ms Groen to lie to them and terminating her employment due to her failure to do that constituted as discrimination by reason of her religious and sexual beliefs. They also found that the actions of her former employees amounted to harassment. Even after the ruling of the employment tribunal, the nursery appealed.
The Employment Appeal Tribunal (EAT) presided over by Judge Swift heard the case and ruled the earlier finding of religious discrimination by the Watford employment tribunal as incorrect. Judge Swift cited an earlier judgement of the Supreme Court in the high profile case regarding Lee Vs Asher’s Baking Company Limited where it was ruled that by refusing to inscribe a pro-gay marriage slogan on a cake, the baker has not discriminated against an individual’s personal characteristics as that same treatment would have be levelled towards any customer regardless of their sexuality. So therefore, in the same vein, the nursery would have dismissed any employee found to be cohabiting when not married regardless of their religion.
In this case it was the religion or belief of the nursery which was relevant, and not the protected characteristic of the employee concerned. In alignment, with existing guidance from the Supreme Court, it is not possible to lay a claim under the Equality Act on these grounds.
The nursery stated a claim on the grounds that the case could not be considered religious discrimination due to the fact that the employee was herself Jewish and they held a difference in views about whether Judaism, excludes cohabitation of non-married couples. However, this claim was rejected because in principle the law allows for claims of religious discrimination where both parties are part of the same religion.
The EAT also stated that the indirect discrimination could not be held as the ad hoc measure of asking the employee to lie about her domestic arrangements was not sufficient to amount to a provision, criterion or practice. However, they upheld the original decision that she had been a victim of direct discrimination and harassment on the grounds of sex. The case was referred back to the original Employment Tribunal to decide the level of compensation to be awarded.
At first glance the expectation would be that it would not be permissible for an employer to impose their religious beliefs on staff and therefore the employer should not suggest to the employee that she lie to them about her domestic arrangements.
However, the nuances of this case are due to the legal protection from discrimination on the grounds of religion or belief covering only the religion, belief or lack of either of the alleged victim and not the alleged discriminator.
However, the employee was not left without compensation because her complaints of sex discrimination and harassment were upheld.