Gan Menachem Hendon Ltd v De Groen

(1) Overall disposition: the appeal is allowed in part. The employer's appeal against findings of direct discrimination and indirect discrimination on grounds of religion or belief succeeds. The employer's appeals against the findings of direct sex discrimination and harassment on grounds of sex are dismissed. The claims of religion/belief discrimination are therefore dismissed; the sex discrimination and harassment claims are remitted for remedy. (2) Direct discrimination (religion or belief): the Tribunal erred in treating an employer's own religious belief as sufficient to found a direct discrimination claim. The EAT applied and followed the Supreme Court reasoning in [2018] 3 WLR 1294 (Lee v Ashers) and concluded that protection attaches to the claimant's protected characteristic (including perceived or associative situations), not to the discriminator's belief alone (see paras [18]–[25]; [70]–[73]). The Employment Tribunal's conclusion that the employer acted because of the respondent's lack of belief was not sustainable on the facts. Accordingly the direct religion/belief findings are set aside. (3) Construction of section 10: the EAT held that section 10 can cover a situation where claimant and employer share a religion but the claimant is treated because she does not accept a particular tenet, provided the link is to the claimant's belief or perceived belief (paras [26]–[33]). This interpretation follows the legislative continuity from the 2003 Regulations, but it did not salvage the Tribunal's factual conclusion in this case. (4) Occupational requirement (Schedule 9 paragraph 3): the EAT endorsed the Tribunal's fact‑based conclusion that no occupational requirement not to cohabit had been applied. Even if raised, the Tribunal's reasoning on proportionality was accepted as unnecessary to decide given the main conclusion (paras [34]–[36]). (5) Direct discrimination (sex): the EAT upheld the Tribunal's findings on six of eight detriments. The Tribunal's fact findings supported that sex was a "significant influence" for those detriments. The appeal on sex discrimination fails (paras [37]–[46]; [106]). (6) Harassment (sex): the Tribunal was entitled to find unwanted conduct related to sex for detriments relied on. The EAT dismissed the employer's challenge to that conclusion (paras [47]–[50]; [107]–[112]). (7) Indirect discrimination (religion or belief): the Tribunal erred in law in identifying the PCP as a requirement that employees be prepared to make a dishonest statement about their private life. The facts demonstrated an ad hoc, one‑off response rather than a PCP of general application. The finding on comparative disadvantage under section 19(2)(b) was also inadequately addressed. The indirect discrimination conclusion is set aside (paras [51]–[60]; discussion of UKEAT/032/12). (8) Remedy and remittal: the claims of direct sex discrimination and harassment on grounds of sex are remitted to the Employment Tribunal for remedy. The religion/belief direct and indirect claims are dismissed and not remitted (final order).