Was nursery teacher's dismissal for co-habiting outside marriage discriminatory?

EAT: teacher's dismissal could not be discriminatory on the basis of the employer's religion or belief but was discriminatory on the ground of sex

Religion or belief discrimination

Direct discrimination can occur when someone is treated less favourably because of religion or belief. A lack of religion or belief is also a protected characteristic. The religion or beliefs of the alleged discriminator are not relevant. The key question is, was the belief or lack of belief of someone the other than discriminator a reason for the less favourable treatment?

This was one of the key points made by the Supreme Court in the recent case of Lee v Ashers Baking Co Ltd [2018] UKSC 49. In that case, a bakery's refusal to prepare a cake with the slogan "support gay marriage" was held not to be discriminatory on the grounds of religious belief because the belief in question was that of the bakery and not the customer (or someone else).

Case details: Gan Menachem Hendon Ltd v De Groen

Ms de Groen was a teacher at an ultra-orthodox Jewish nursery. She attended a nursery social event with her boyfriend who mentioned to one of the directors of the nursery that they lived together. Following this, the headteacher and the managing director of the nursery met with Ms de Groen in the staffroom without giving notice of the meeting. Ms de Groen was asked to confirm (even if it was not true) that she did not live with her boyfriend so that they could inform concerned parents that this was the case. The headteacher and managing director expressed their views at this meeting that co-habiting before marriage was wrong, that Ms de Groen should consider counselling if she had problems with the idea of marriage and that, at the age of 23, time was passing for her to have children.

Ms de Groen refused to lie about her private life and suggested that she could bring a claim because of the way she had been treated. There followed a disciplinary process which led to Ms de Groen's dismissal on the basis that she had contravened the culture, ethos and religious beliefs of the nursery and had damaged the nursery's reputation (risking financial loss to the nursery because of parental reaction).

Ms de Groen brought a number of claims, including direct discrimination, indirect discrimination and harassment on the grounds of both sex and religion or belief. An employment tribunal upheld all of her claims.

On appeal, the EAT disagreed with the tribunal's conclusions on religion or belief discrimination. In particular, it noted that the tribunal had determined that the nursery had discriminated against the claimant on the basis of its own religious beliefs. It had not made sufficient findings from which it could decide that the claimant had been less favourably treated because of a lack of religious belief.

The EAT made clear, following the Ashers Baking case, that the religious belief of the alleged discriminator cannot found a claim for religion or belief discrimination. It must be the religion, belief or lack of religion or belief of someone else which is the reason for the less favourable treatment.

The EAT agreed with the tribunal's finding that Ms de Groen had been directly discriminated against and harassed in relation to her sex.

Comment

This case is a useful reminder that a lack of belief is a protected characteristic under the Equality Act 2010. In this case, evidence in tribunal did not prove that the dismissal and other treatment was because of the claimant's lack of belief. The focus of the tribunal was, incorrectly, very much on the beliefs of the employer.

However, it is possible that similar circumstances could lead to a finding of religion or belief discrimination where the reason for the less favourable treatment or harassment was found on the evidence to be the claimant's lack of belief. The EAT confirmed that this could happen, for example, where the discriminator and claimant shared the same religion but differed in their particular beliefs. For example, as in this case, a disagreement about whether co-habiting outside marriage was against the tenets of the religion.

In some circumstances, employers can defend a direct discrimination claim by showing that it is an "occupational requirement" to have or not to have a particular protected characteristic. An employer with a religious ethos may be able to show that it is an occupational requirement for some employees to have a particular religious belief. This will only apply where there is a genuine reason why the employee must have the belief to fulfil the role. The occupational requirement must also be a proportionate means of achieving a legitimate aim. If there is a less discriminatory way of achieving the employer's aim, it will not be found to be proportionate.

The EAT agreed with the tribunal in this case that the dismissal was not the result of the application of an occupational requirement and that the nursery could not have defended the claim on this basis.

Employers should carefully consider whether a requirement to have a particular protected characteristic is a genuine requirement for the role. In the context of an educational institution with a religious ethos, there may be a genuine requirement for some roles, such as pastoral leadership roles, to be filled by people practising the faith, but this will not extend to all employees.