The Employment Appeals Tribunal (EAT) in the case of Gan Menachen Hendon Limited –v- De Groen has held that a Nursery Teacher who was sacked when it was discovered that she was co-habiting with her boyfriend, (which conflicted with the religious beliefs of the Nursery), was not directly discriminated against on the grounds of religion or belief. This is the first reported case to rely on the Supreme Court Decision on the case of Lee –v- Ashers Baking Company Limited.

Underlying Facts

Miss De Groen was a Nursery Teacher at an Ultra Orthodox Jewish Nursery. Miss De Groen lived with her partner but was not married to him. She attended a barbeque with her partner who mentioned to one of the Trustees of the Nursery that he and Miss De Groen lived together. Parents of the Nursery subsequently found out and raised concerns with the Nursery. Miss De Groen was called to a meeting at which she was asked to confirm that she was no longer living with her partner, even if it was not true so that they could communicate this to parents. Miss De Groen refused and she was dismissed.

Miss De Groen brought claims of direct discrimination and harassment relating to her sex and direct and indirect discrimination on the grounds of religion or belief. She succeeded at Tribunal and Employer appealed to the EAT.

EAT Decision

The EAT allowed the Employer’s appeal against the find of direct discrimination on the grounds of religion or belief. Applying the decision of Lee –v- Ashers Baking Company, the EAT concluded that the purpose of discrimination law is to protect those with a protected characteristic from less favourable treatment because of that characteristic. As a result therefore, any direct discrimination claim based on the discriminators protected characteristic is destined to fail because any comparison would always show that there had been no difference in treatment i.e., an employer acting on the grounds of their own religious belief will treat everyone in the same way.

The EAT also concluded that Miss De Groen had not been discriminated against because of her lack of belief and held that the alleged discriminators had acted on the basis of their own beliefs and not the Claimant’s lack of belief. The EAT did however dismiss the Nursery’s appeals against the findings of sex discrimination and harassment.

Comment

This is the first case applying Ashers in an Employment context as Ashers concerned the provision of goods and services. It is useful clarification from the EAT that it is the Employee’s protected characteristic that should be relied upon when assessing whether discrimination has occurred and not the protected characteristic of the alleged discriminator.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment Team at Cleaver Fulton Rankin for further advice or information.

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