And here’s one we should have noted earlier…

Background

In Ms Z De Groen v Gan Menachem Hendon Ltd [2017] UKET 3347281/2016, the claimant was employed by the respondent, a private Orthodox Jewish nursery school that followed the teachings of the Lubavitcher Rebbe [22]. Part of the ethos of the nursery is to instil in its children the principles and practices of ultra-Orthodox Judaism:

“Both handbooks for teachers and parents and a job description mention the religious nature of the nursery in various places. However, none sets out that all staff must adhere to the beliefs and practices of the ultra-Orthodox community with which the nursery is most closely associated. Indeed, the respondent was at pains to point out that it was open to employing a non-Jew as a teacher provided that they had a sufficient knowledge of the principles of Judaism and adhered to key aspects of its fundamental principles (such as its dress code)” [24].

Ms De Groen was cohabiting with the man whom she later married and, as a result, was sacked. The school maintained that its actions culminating in her dismissal had been motivated by its own and its parents’ reactions to cohabitation and by her consequent unsuitability to teach the children of Orthodox Jews. It was not in dispute that many Orthodox Jews regard cohabitation prior to marriage as being contrary to their faith [7].

Ms De Groen never claimed unfair dismissal; instead, she brought claims in relation to various acts of discrimination said to have arisen in the context of the events which led up to her sacking [6]. She understood that some ultra-Orthodox Jews would see cohabitation outside marriage as contrary to a fundamental tenet of Jewish law (as they understood it), but she did not herself believe this to be so. Moreover:

“As was pointed out by both sides in this case, different Jews hold different beliefs. By way of example, we were told that ultra-Orthodox Jews believe that all religious festivals must be observed over a period of two days, whilst less-Orthodox Jews would observe most festivals only for one day. Some consider cohabiting outside of marriage to be impermissible, others do not” [19].

“No one has criticised the claimant’s performance as a teacher. On the contrary, it is clear that she greatly enjoyed teaching and that the respondent valued her as a very good teacher” [21].

In her view, therefore, the issue was not her professional competence but her private life.

When it became apparent that Ms De Groen was living with her boyfriend, she was summoned to a meeting to discuss the matter. The Employment Tribunal found that her interlocutors were “rather overbearing”:

“They were dispensing wisdom (and some sympathy) as they saw it. However, in reality they were seeking to impress upon the claimant (and, if they could, impose upon her) their system of beliefs. They would not have so behaved towards a male teacher. Both accepted that had they attempted to do so, they would have expected a man to have got up and walked out shortly after the meeting started. Furthermore, they accepted that certain questions and comments would not have been asked of, or made to, a man” [41].

After a second meeting – which was soon terminated – Ms De Groen asked for a written apology and a promise that she would not be harassed in that way again, adding that she had taken legal advice and referring to the possibility of an employment tribunal claim for discrimination if matters could not be resolved by way of an apology [43]. Instead, the nursery commenced disciplinary proceedings, relying on “an act of SOSR (some other substantial reason)”: acting in contravention of the nursery’s ethos and religious beliefs, damaging the nursery’s reputation and risking a loss of income by parents withdrawing children [47]. She was dismissed followed a hearing in her absence by a “disciplinary panel” [51].

Before the Employment Tribunal, the nursery submitted that if Ms De Groen lacked a belief in the Jewish law forbidding cohabitation and that constituted a relevant lack of belief for the purposes of the 2010 Act (which the nursery disputed), a detriment sufficiently connected to that characteristic would be protected. On the other hand, the nursery argued that if Ms De Groen held the belief that cohabiting was contrary to Jewish law, yet nevertheless cohabited and suffered a consequential detriment, that position could not be protected because she would not have a relevant belief or relevant lack of belief [65].

The judgment

The ET dismissed the nursery’s distinction between “belief” and “lack of belief” as wrong in law [66]. The second assertion

“assumes that it is possible to define Judaism by reference to all possible laws and practices of the ultra-Orthodox and not otherwise. In fact, neither the respondent (nor any other individual or organisation) can hold a monopoly of Jewish beliefs. Neither Judaism nor Orthodox Judaism are homogenous religions. The claimant can properly be said to subscribe to the Jewish faith whilst holding different particular religious beliefs from some other Jewish believers. The effect of the respondent’s interpretation would be to permit theocracy within religious organisations. They could dismiss employees for not, in the view of the organisation, following each and every belief and practice which the organisation considered to be part of the religion” [68].

There was also a dispute as to the appropriateness of the claimant’s comparator. Ms De Groen relied upon a hypothetical comparator who is an employee who believes that cohabitation is contrary to Jewish law, or morally impermissible. The nursery argued that the appropriate comparator was someone who was subject to a parental complaint for reasons other than cohabitation, or some other absence of belief. The ET rejected the nursery’s assertion [69]. The ET agreed with Ms De Groen that the nursery had treated her in the way that it did not only because of her own beliefs but also because of those religious beliefs which it held [73].

As to the application of a Provision, Criterion or Practice (PCP) that discriminated indirectly against Ms De Groen, the ET was satisfied that there was a substantial pool of persons disadvantaged:

“Even if one defined the pool as a proportion of those of the Jewish faith, we were satisfied on the unchallenged evidence of the claimant and Mr Waknin that there is a significant body of Jews who do not regard cohabiting outside marriage as contrary to their beliefs” [77].

The dismissal had not been a proportionate means of achieving a legitimate aim [96], nor could it be justified [97]. As to the claim of harassment, Ms De Groen “was dealing with senior managers who were behaving rather like an overbearing mother and elder sister” and “the effect was undoubtedly humiliating, degrading and offensive” [111]. The subsequent conduct of the nursery

“was equally offensive and hurtful to the claimant and continued her humiliation and degradation. Cohabitation was turned into a disciplinary matter and she was accused of lying, misleading and so forth all of which were untrue” [112].

The level of the award was to be considered at a subsequent remedy hearing.