Can less favourable treatment based on the discriminator’s religion or belief form the basis of a direct discrimination claim?
Monday 4th March 2019
No, according to the EAT in Gan Menachem Hendon v De Groen.
Direct religion or belief discrimination occurs when A treats B less favourably than A treats or would treat others because of religion or belief, or a lack of religion or belief.
Ms de Groen worked as a teacher in a Jewish nursery run on ultra-orthodox principles. It became known that she was living with her boyfriend. At a meeting to discuss this, both the headteacher and nursery managing director suggested that the arrangement was bringing the nursery into disrepute. They also opined that unmarried cohabitation was wrong, and that Ms de Groen was running out of time to have children and should consider counselling if the idea of marriage was objectionable to her.
A solution was suggested whereby Ms de Groen lied and told the nursery she was not cohabiting so that it could pass this information on to any concerned parents. When she refused to do this, the nursery dismissed her.
Decision and comment
This was one of the first applications of the Supreme Court’s ruling in Lee v Ashers Baking Company Limited (the ‘gay-cake’ case), in which the Court held that less favourable treatment arising because of the alleged discriminator’s beliefs cannot give rise to a claim for direct religion or belief discrimination.
In the present case, the EAT held that it was not the claimant’s lack of belief, but the manager’s own belief that led to the treatment being complained of. Accordingly, the claim had to fail because the discriminator would act in the same way towards anyone, and there would be no difference between Ms de Groen’s treatment and that of a comparator. The case is a useful illustration of how Ashers will work to limit the scope of claims for direct discrimination on grounds of religion or belief.