A recent Employment Appeal Tribunal (EAT) decision decided that the dismissal of a nursery employee for cohabiting with her boyfriend in contravention of the nursery’s religious beliefs was not direct religious belief discrimination.
The Equality Act 2010 (the “Act”) prohibits an employer from treating an employee less favourably as a result of a protected characteristic. The protected characteristics covered under the Act include ‘religion or belief’, which in turn includes a lack of religious belief.
The facts of Gan Menachem Hendon Ltd v De Groen
An ultra-orthodox Chabad Jewish nursery run by GMH Ltd became aware that one of its employees was cohabiting with her boyfriend outside of marriage. For fear of the parents’ views, the nursery asked the employee to tell them that she was not cohabiting outside of marriage – even if that were untrue, so that they could explain this to parents if challenged. The employee rejected this proposition and refused to lie about her relationship.
Consequently the nursery dismissed the employee on the basis that (amongst other things) she was acting in contravention with its religious beliefs.
The Employment Appeal Tribunal’s decision
When the Employment Tribunal decided the employee’s case initially they decided that her dismissal was inextricably linked to her lack of religious belief which is a protected characteristic under the Act. They therefore decided that her discrimination claims should succeed.
However, in allowing the appeal the EAT made it clear that the protections under the Act did not extend to decisions made on the basis of the alleged discriminator’s religious belief.
The EAT decided that the case law is clear that discrimination protects against less favourable treatment because of a protected characteristic of the person who is allegedly being discriminated against. So an employer cannot discriminate on the basis of a religious belief that the employee holds. However, the protection under the Act does not extend to decisions made against an employee on the basis of the employer’s religious belief.
The EAT decided in this case the decision was taken to dismiss the employee on the basis of the nursery’s religious beliefs and not the employee’s lack of belief. As this was not a decision made on the basis of the employee’s religious beliefs or lack of, the employee’s claims for religious belief discrimination should not succeed.
This case makes it clear that less favourable treatment because of the beliefs of the employer is not enough to make out a direct religion or belief discrimination claim. Although this is helpful for employers, the employee’s other claims against the nursery, including sex discrimination did succeed and the nursery’s actions in this case still therefore resulted in a significant claim.
Due to the legal complexities, when considering dismissal due to a difference in belief, or non-compliance with requirements based on the employer’s belief, employers should always take legal advice before proceeding.
If you are concerned how this case could impact upon your organisation or have any questions in relation to discrimination issues, please contact me.