Employees are protected against discrimination due to their religion or belief by the Equality Act 2010. Direct discrimination is where an employer treats an employee less favourably because of their religion or belief (or their lack of it). In Gan Menachem v De Groen, the Employment Appeal Tribunal confirmed that it is the employee’s religion, rather than the employer’s, which is relevant in a direct discrimination claim.
The employee worked in an ultra-Orthodox Jewish nursery. The nursery found out she was living with her boyfriend, which contravened the nursery’s religious principles. At a meeting, the employer told her that her behaviour risked damaging the nursery’s reputation with parents. They asked her to lie and say she was no longer cohabiting, so they could deny all knowledge to parents. She refused and was eventually dismissed. She brought various claims in the employment tribunal, including one for direct discrimination on the grounds of religion or belief.
The employee won all her claims in the employment tribunal, but the Employment Appeal Tribunal disagreed about her religion discrimination claims. The Equality Act 2010 protects individuals from discrimination on the grounds of their own religion or belief. In this case, the employee was dismissed because of her employer’s religion or belief, and the employee’s failure to comply with those beliefs, rather than her own. Her direct discrimination claim failed.
The employment tribunal in this case made its decision before the Supreme Court decision on this point in Lee v Ashers (the ‘gay cake’ case). Less favourable treatment because of an employer’s beliefs is not direct religion or belief discrimination. In this case, the employer would have treated any cohabiting employee in this way, regardless of their religion or belief.
Astons Solicitors
March 2019