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No discrimination at strictly religious nursery

01 March 2019 #Discrimination

The number of people who identify with a religion or belief is growing faster than you might think. Figures published in a recent Guardian article state that whilst the world’s inhabitants are set to increase by close to 32% between now and 2060, the Muslim population is forecast to grow by 70%. Similar increases are seen within Christianity, 34%, and Judaism, 15%. In tandem with this increase, discussions around religion’s role in the workplace are on the rise.

In his recent Employment Appeal Tribunal judgement, Justice Swift agreed with the Tribunal’s finding that there was sex discrimination in de Groen v Gan Menachem but rejected its finding of evidence of discrimination on the grounds of religion or belief.

The Claimant in question was employed as a teacher at an ultra-orthodox Jewish nursery that is affiliated with the Hasidic group. Whilst attending a school barbecue with her boyfriend, one of the nursery’s directors overheard him mention that they were living together. Living with your partner outside of wedlock contravenes the school’s strict religious ideals and subsequently the Claimant was called into a disciplinary meeting. The nursery decided to dismiss her after she refused to lie and deny they were cohabitating out of wedlock – an issue that the school maintained was alarming parents and calling into question the religious authenticity of the nursery. The Claimant then progressed to file proceedings against the nursery for, amongst other things, indirect and direct belief or religion discrimination.

Belief or religion is one of the nine so-called “Protected Characteristics” which are covered by the Equality Act 2010. The definition is extremely broad but case law suggests that the individual seeking to rely on the protected characteristic will need to show some, if not all, of the following:

  • That the belief or religion is genuinely held
  • That it is in fact a belief or religion and not merely an opinion
  • That it is a belief or religion that is worthy of respect in a democratic society
  • That the belief or religion attains a certain level of seriousness and importance

Interestingly however, the individual does not need to share the belief or religion with anyone else or have the support of a political party.

Key to Justice Swift’s conclusion that there was no evidence of discrimination on the grounds of religion or belief was deciphering and determining who actually shared the protected characteristic, the discriminator or the disciminatee. Justice Swift concluded that the “purpose of discrimination law … [is] 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.”

Integral to this finding was the recent Supreme Court decision in Lee v Ashers Bakery. This case received a large amount of publicity as it upheld the rights of a Northern Ireland bakery to refuse to make a cake iced with the words “Support Gay Marriage”. Noting that the Bakery’s objection to making the cake was due to the message and not the messenger. Baroness Hale in her judgement, found that there was no less favourable treatment because the bakery would have treated any and everyone in the same manner. Key to this form of direct discrimination is the less favourable treatment in comparison to another who does not share the same protected characteristic. “The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message”, Baroness Hale mused.

Similarly, in the de Groen v Gan Menachem case, the defining factor is that as the Claimant was not the one who shared the “Protected Characteristic” of religion or belief, there could be no discrimination “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” stated Justice Swift.

The decision has been met with some derision, especially from the education sector. The Chair of the Accord Coalition, an institution that campaigns for education inclusivity, has commented on the case: “Rather than allow fresh uncertainty to fester, the government should remove exemptions from equality law that some faith schools believe grants them a broad ability to religiously discriminate in the recruitment and employment of teachers”. As with the Lee v Ashers Bakery decision, this has, and will continue to be a reference point in any debate on strict religious views operating in the workplace. The appellate process could be far from over, although for now the Tribunal must decide the level of compensation owed to the Claimant as a result of the direct sex discrimination and harassment on the grounds of sex claims that were upheld on appeal.

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Jacob Montague

Jacob Montague
Trainee Solicitor

E: jmontague@clarkslegal.com
T: 0118 960 4613
M: 079 0996 4585