May a faith-based nursery school sack a teacher for cohabitation? De Groen in the EAT

We have previously noted the judgment in Ms Z De Groen v Gan Menachem Hendon Ltd [2017] UKET 3347281/2016, in which Ms De Groen, a teacher at a private Orthodox Jewish nursery school that followed the teachings of the Lubavitcher Rebbe, was sacked because she was cohabiting with the man whom she later married. The Nursery appealed, with mixed results: in an interesting judgment, Swift J concluded that she had not been discriminated against on grounds of religion but that she had been discriminated against on grounds of sex.

The Employment Tribunal proceedings

Instead of claiming unfair dismissal, Ms De Groen had 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. 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.

Before the Employment Tribunal, the Nursery had 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 (a claim which the nursery disputed), a detriment sufficiently connected to that characteristic would be protected. On the other hand, the nursery also 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 ET dismissed the nursery’s distinction between “belief” and “lack of belief” as wrong in law [66]. The ET also agreed with Ms De Groen that the nursery had treated her in the way that it did not only because of her own religious beliefs but also because of its own religious beliefs [73] and pointed out that there was “a significant body of Jews who do not regard cohabiting outside marriage as contrary to their beliefs” [77]. The ET concluded that her dismissal had not been a proportionate means of achieving a legitimate aim [96], nor could it be justified [97]. Further, the ET held that she had been the victim of harassment on grounds of her sex.

The appeal

In Gan Menachem Hendon Ltd v De Groen (Sex Discrimination: Religion or Belief Discrimination: Harassment) [2019] UKEAT 0059 181202, the Employment Appeal Tribunal upheld the decision of the ET that Ms De Groen had been the victim of discrimination and harassment by the kindergarten because she was a woman. There were two issues in the appeal: the conclusion on the claim of direct sex discrimination, contrary to s.10(1) Equality Act 2010 and the conclusion on the claim of harassment claim on grounds of sex [10].

Religious discrimination

As to the issue of religious discrimination, Swift J concluded that the ET had misunderstood the law:

“The conclusion that section 10(1) of the 2010 Act prohibits less favourable treatment by an employer on the basis of its own religion or belief is wrong. It is a conclusion that cannot survive the reasoning of Baroness Hale in her judgment in Lee v Ashers Baking Co Limited [2018] 3 WLR 1294, at §§42–45 (handed down after the Tribunal’s Judgment in this case). In that case, a bakery had refused to supply a cake iced with the message ‘support gay marriage’. The provisions in issue were in the Fair Employment and Treatment (Northern Ireland) Order 1998 (which prevented discrimination on grounds of religious belief or political opinion), and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (which prevented discrimination on grounds of sexual orientation). On the facts found, the bakery had refused to supply the cake because of its owners’ objection on religious grounds to gay marriage. In the context of the claim under the 1998 Order, one aspect of the argument before the Supreme Court was the contention that the District Judge who had heard the case had been wrong to conclude that under the 1998 Order discrimination could take place on the grounds of the discriminator’s religious belief and political opinion [20].

“…Baroness Hale’s conclusion was that the District Judge had been wrong. The purpose of discrimination law, she said, was the protection of a person who had a protected characteristic from less favourable treatment because of that characteristic, not the protection of persons without that protected characteristic from less favourable treatment because of a protected characteristic of the discriminator. Any conclusion to the contrary would run against the principle that a discriminator’s motive for the less favourable is immaterial. More importantly any direct discrimination claim that rested on the discriminator’s protected characteristic would be doomed to fail because any comparison between the person receiving the less favourable treatment and ‘other persons’ would always produce the result that there had been no difference in treatment since it could safely be assumed that a discriminator acting on the grounds of his own political (or religious) belief would act in the same way regardless of who was affected [21].

In the present case, the Tribunal also refers to associative discrimination as a reason for its conclusion that a claim could be founded on the Nursery’s religious belief. That is a non sequitur. Classic instances of associative discrimination include (a) situations where a Claimant is treated less favourably because of her connection to a person who has a protected characteristic …; and (b) situations in which the discriminator wrongly believes that the Claimant has a protected characteristic … But no claim asserting associative discrimination rests on the premise that the discriminator is acting because of his own protected characteristic; nor could any claim of associative discrimination rest on an association of the Claimant with the discriminator’s protected characteristic” [22].

Further, Swift J concluded that “this is not a case about whether or not a non-religious belief is a belief which is protected” [29]. Rather:

This is a case about differing religious belief within a religion. Ms De Groen is Jewish; she considers herself a practising Jew. It is not her case that her belief is either novel or outside the scope of Judaism. For the purposes of this part of my judgment, I must assume … that the root cause of the events that resulted in her dismissal was the disagreement about whether adherence to Judaism excluded cohabitation outside marriage. The Tribunal recorded that some Jews consider cohabitation outside marriage to be impermissible, but others do not. In the course of this appeal, neither party sought to persuade me otherwise. Disagreements on such matters are not exclusive to Judaism. It is entirely possible in any organised religion that disagreements exist as to whether some or other practice or value is an important part of the religion, or to the extent of its importance. It is in the nature of many organised religions that there will be differences of opinion. Members of the religion may disagree but, absent schism, they remain members of the same religion.” [30: emphasis added].

The Nursery’s appeal against the conclusion that it directly discriminated against Ms De Groen because of the religion or belief protected characteristic therefore succeeded [38].

Discrimination on grounds of sex

As to the issue of direct discrimination on grounds of sex, however, Swift J held that the Tribunal had been entitled to reach the conclusion that it had – and that was “readily apparent” from the context of the dismissal proceedings and documents: “The Tribunal characterised what happened at the 27 June [disciplinary] meeting as happening because Ms de Groen was a woman: there was direct support for this conclusion in the evidence available” [42]. Further:

“At paragraph 106.1 the Tribunal went on to say that it had concluded that Mrs Toron’s and Mrs Lieberman’s intentions in advance of the meeting included discussion of ‘possible marriage and possible pregnancy and childbearing in general terms’. These findings are sufficient to support the conclusion that the decision to call the meeting was because of her sex” [42].

Overall, applying the “significant influence” approach, there was a sufficient basis for the Tribunal’s conclusion from its own evaluation of the evidence it had heard. The Nursery’s appeal against the decision on the claim of direct sex discrimination therefore failed [45 & 46]. The Nursery’s appeal against the harassment decision also failed [49].

Disposal

The claim was remitted to the Employment Tribunal for consideration of remedy on the claims of direct sex discrimination and harassment on grounds of sex [68].

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