04 Sep 2019
A recent ruling has found that direct discrimination claims that arise as a result of the alleged discriminator’s protected characteristic, such as their religious belief, won’t succeed at tribunals.
Gan Menechem Hendon Limited v De Groen
Direct discrimination takes place when an employer treats an employee less favourably than others because of a protected characteristic.
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
Indirect discrimination occurs when an employer applies a policy or practice that places a person with a protected characteristic at a disadvantage compared to others without the characteristic.
The organisation may be able to justify the policy (or practice) if they can demonstrate it’s a proportionate means of achieving a legitimate aim.
The health & safety of employees and the specific requirements of the type of business, are examples of ‘legitimate aims.’
Background to the case
The claimant was a team leader at a Jewish nursery that was run in accordance with ultra-orthodox Chabad principles.
She and her boyfriend attended a BBQ hosted by a synagogue affiliated with the nursery.
Several parents of the nursery’s children were present at the BBQ, as well as one of its directors.
This director struck up a conversation with the claimant’s boyfriend, who remarked that he lived with the claimant, despite the fact they weren’t married.
Following this, a meeting was held with the claimant.
During the meeting, they asked her to confirm that she wasn’t living with her boyfriend, essentially asking her to lie.
Why? So they could inform the children’s parents of the claimant’s fictitious living situation.
Management clearly expressed the view that they felt cohabitation was wrong. When the claimant refused to lie, she was invited to a disciplinary hearing for allegations that she was living with her boyfriend.
The nursey stated that it was coming under third-party pressure from parents, who were threatening to remove their children from the nursery.
It also outlined that the claimant was having a detrimental impact on the reputation of the organisation and its credibility as a religious nursery.
The claimant was dismissed and later brought claims to the employment tribunal (ET) for direct discrimination and harassment related to her sex.
She also brought claims of direct and indirect discrimination related to her religion or belief.
What did the tribunal say?
The tribunal initially upheld all of her claims, finding that the claimant had been dismissed because she cohabited contrary to the nursery’s religious beliefs and refused lie about it, not because she posed some threat to the nursery overall.
What did the Employment Appeal Tribunal say?
The nursery appealed against the tribunal’s decision to the Employment Appeal Tribunal.
They upheld the sex discrimination claim, finding that the gender of the employee had been a significant influence over their treatment of her.
Despite this, they overturned the decision that the claimant had been discriminated against because of religious belief.
Why? Because the reason for her treatment was not her religion—it was the religion of the nursery’s management team.
The EAT explained that the purpose of equality law is to protect an individual with a protected characteristic from suffering less favourable treatment.
It didn’t offer the same protection if the employer discriminates against an employee on account of the employer’s own protected characteristic. In this case, the employer’s religious beliefs.
This was because any employee in this situation would likely have been subjected to the same treatment as the claimant.
The employers were mostly found not to be liable in this situation as the claim rested on their religious belief, not that of the employee.
However, they still had to pay out as a result of the sex discrimination claim.
Despite this, employers need to proceed with care if they take action against an employee on the basis of the employee’s religion or belief.
If poorly managed, this could result in a discrimination claim.
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