Gan Menachem Hendon Ltd v De Groen

An employer does not directly discriminate on grounds of religion or belief merely because it acts from its own religious belief. Direct discrimination law protects a person from treatment because of that person's protected characteristic, including a protected lack of belief, rather than from an employer's religiously motivated conduct.

A provision, criterion or practice inferred from a single event must have sufficient evidence of general application or repetition. An ad hoc response to particular circumstances is not enough. Further, indirect discrimination requires a demonstrated comparative disadvantage under section 19(2)(b) of the Equality Act 2010.

Where sex is a significant influence, meaning more than trivial, in the treatment, direct sex discrimination may be established. Conduct arising from that treatment may also be harassment related to sex.

The respondent teacher worked at a Jewish nursery. After it became known that she lived with her boyfriend, managers held meetings with her, urged her to state that she was not cohabiting, commenced disciplinary proceedings and dismissed her.

The Employment Tribunal upheld claims for direct sex discrimination, direct and indirect religion-or-belief discrimination, and sex-related harassment. It found that the nursery had applied a requirement that the claimant be prepared to make a dishonest statement about her private life in order to remain employed.

The nursery appealed all findings. The teacher cross-appealed the Tribunal's rejection of a further alleged provision, criterion or practice requiring compliance with a prohibition on cohabitation outside marriage. The central issues were the scope of direct religion-or-belief discrimination, the existence and group disadvantage of a PCP, and whether the sex-discrimination and harassment findings were adequately supported.

1. The appeal was allowed in part. The findings of direct and indirect discrimination because of religion or belief were set aside. The appeals against direct sex discrimination and sex-related harassment were dismissed. The cross-appeal was dismissed.

2. The Tribunal erred in treating the employer's own religious belief as a protected characteristic capable by itself of founding direct discrimination. Applying Lee v Ashers Baking Co Ltd, the statutory protection concerns treatment because of the claimant's protected characteristic, not treatment caused by the discriminator's protected characteristic. The findings did not support a distinct conclusion that the nursery acted because of the claimant's lack of belief, rather than because of its own beliefs and her non-compliance with them.

3. Although unnecessary to the result, section 10 of the Equality Act 2010 was capable of protecting a member of a religion who is treated less favourably because she lacks belief in a particular tenet of that otherwise shared religion.

4. The direct sex-discrimination findings were open to the Tribunal. Once the burden of proof had shifted, the issue was whether sex was a significant influence on the treatment, in the sense of more than a trivial influence. The findings about the meetings, their subject matter, the dismissal and the dismissal documents provided a sufficient evidential basis.

5. The harassment findings also stood. The relevant unwanted conduct was sufficiently related to the claimant's sex for the reasons supporting the direct sex-discrimination findings.

6. The indirect-discrimination claim failed. A PCP derived from conduct on a single occasion requires evidence that it represented a generally applicable practice or policy, or a proper inference to that effect. The proposed requirement that the claimant lie about her private life was an ad hoc response, unsupported by such evidence. In any event, the generic requirement would not place Jews sharing the claimant's belief at a particular comparative disadvantage under section 19(2)(b).

7. The case was remitted to the Employment Tribunal for remedy on direct sex discrimination and sex-related harassment only.

• Employment Appeal Tribunal: Allowed the employer's appeal against the religion-or-belief discrimination findings, but dismissed its appeal against direct sex discrimination and sex-related harassment. Remitted remedy for the surviving claims.
• Employment Tribunal: Upheld claims under sections 13, 19 and 26 of the Equality Act 2010. The citation of its judgment was not stated in the judgment.