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Religious discrimination

Is it religious discrimination for an ultra-orthodox Jewish nursery to dismiss a practising Jewish teacher for living with her boyfriend? The UK Employment Appeal Tribunal recently grappled with this question. Read on to find the answer!


Chit-chat at a barbeque                                                               

Ms De Groen was employed as a teacher at Gan Menachem Kindergarten (“the Nursery”). It is a Jewish nursery, affiliated with an “ultra-orthodox” Jewish movement (the Chabad Lubavitch Hasidic movement) and run in accordance with its principles. In May 2016, Ms De Groen, who is a practising Jew, attended a barbeque organised by a synagogue affiliated with the Nursery. She went with her boyfriend. Others present included parents of some of the children at the Nursery and Ms Freundlich, one of the Nursery’s directors. Ms De Groen’s boyfriend spoke to Ms Freundlich. In the course of that conversation, he mentioned that he lived with Ms De Groen.

This remark led to a meeting between Ms De Groen, Mrs Lieberman (the Nursery’s Head teacher) and Mrs Toron (its Managing Director) in June 2016. Although the meeting initially concerned Ms De Groen’s boyfriend’s remark at the barbeque, it quickly became a wide-ranging consideration by Mrs Lieberman and Mrs Toron of Ms De Groen’s personal life. Both expressed the view that cohabitation outside marriage was wrong, that having children outside marriage was wrong, that (at age 23) time was passing for Ms De Groen to have children and that if Ms De Groen had problems with the idea of marriage she should seek counselling. The Tribunal accepted that Mrs Lieberman and Mrs Toron spoke sincerely and on the basis of their own beliefs, but it also accepted that Ms De Groen became very upset, tearful and distressed. Mrs Lieberman and Mrs Toron indicated that an acceptable solution to the problem would be for Ms De Groen to lie to them and tell them that she did not live with her boyfriend! Ms De Groen refused to lie.

Two days later a further meeting was initiated by Ms De Groen. She told them that she wanted a written apology and a promise that she would not be harassed again. She said that she had taken legal advice and could bring a discrimination claim. There was no apology. Mrs Lieberman and Mrs Toron said that they had “sufficient ammunition to deal with any claim that she might bring”. The meeting only served to make matters worse!

What did the UK Employment Appeal Tribunal say?

The dispute first came before the UK Employment Tribunal which found that Ms De Groen had been subjected to:

1.       direct sex discrimination;

2.       harassment;

3.       direct religious discrimination; and

4.       indirect religious discrimination.

 The Appeal Tribunal agreed with the Tribunal’s findings of direct sex discrimination and harassment. As to sex discrimination, the Appeal Tribunal said that Mrs Toron and Mrs Lieberman embarked on the first meeting not only to discuss the matter of cohabitation, but to discuss marriage, pregnancy and child bearing. This was sufficient evidence that the decision to call the meeting was because of Ms De Groen’s sex. A man would not have been so treated.    

Direct religious discrimination

The Tribunal found that the Nursery discriminated against Ms De Groen because of its religious belief (that cohabitation is impermissible) and her own religious belief (that cohabitation is acceptable).

The Appeal Tribunal disagreed. As to the Nursery’s religious belief, it said that an employer, like the Nursery, is allowed to treat employees, like Ms De Groen, less favourably because of its own religious belief. Such treatment is not discrimination.

As to a person’s own religious belief, the Appeal Tribunal agreed that, in principle, an employer, like the Nursery, cannot treat employees, like Ms De Groen, less favourably because of her own religious belief (or lack of religious belief). Such treatment is discrimination. However, the Appeal Tribunal said that Ms De Groen had not been so treated:

It rings entirely true that the Nursery acted because of its own beliefs and Ms De Groen’s non-compliance with those beliefs. A conclusion that the Nursery acted because of Ms De Groen’s belief (or rather, what she did not believe) is an entirely implausible conclusion.

So what would it have looked like for the Nursery to have acted because of Ms De Groen’s lack of belief? The Appeal Tribunal said that if there was evidence that Mrs Toron and Mrs Lieberman’s concerns extended well beyond harm, or the risk of harm, to the Nursery’s reputation and “reached a free-standing concern that Ms De Groen’s beliefs were not the same as their own”, then the Nursery would have acted because of her non-belief rather than its own belief. 

Differing religious belief within a religion

This case is unusual because it is about differing religious belief within a religion. One argument put to the Appeal Tribunal was that, where both employee and employer are members of the same religion, if the employee does not accept a particular tenet of the religion, and for that reason is less favourably treated by their employer, that is not direct religious discrimination. That is, there is no such thing as direct religious discrimination within a religion. The Appeal Tribunal disagreed, saying:

… It is not [Ms De Groen’s] case that her belief is either novel or outside the scope of Judaism … [S]ome Jews consider cohabitation outside marriage to be impermissible, but others do not … Disagreements on such matters are not exclusive to Judaism. It is entirely possible in any organised religion that disagreements exist as to whether some or other practice or value is an important part of the religion, or to the extent of its importance. It is in the nature of many organised religions that there will be differences of opinion. Members of the religion may disagree but, absent schism, they remain members of the same religion.

It follows that UK discrimination law is not so blunt an instrument that it can only apply to disputes between persons of different religions or between religious and secular persons. It is more nuanced than that. If an employee and employer are members of the same religion, and the employer treats the employee less favourably because of the employee’s religious belief or lack of belief, the employee may claim direct religious discrimination.

Indirect religious discrimination

The Tribunal found that the Nursery discriminated against Ms De Groen because it applied a provision, criterion or practice that employees “be prepared to make a dishonest statement about their relationship and/or private life, in order to remain employed”.

The Appeal Tribunal disagreed. It said that it was a “simple”, “specific” and “ad-hoc” response to one-off circumstances because:

  • it was impractical. If the reputation of the Nursery was under threat, the chances that the strategy (asking Ms De Groen to lie) would save the day were remarkably slim
  • it was in sharp contrast to the Nursery’s handbook and policies.

Although the Appeal Tribunal found that there had not been indirect religious discrimination by the Nursery against Ms De Groen, like the Tribunal, it gave the Nursery a wrap over the knuckles for asking Ms De Groen to lie!

Would an Australian Court have come to the same conclusion?

Some, but not all, Australian jurisdictions prohibit discrimination on the basis of a person’s religious belief or activity. For example, this is not a ground in New South Wales. Based on current discrimination law, if a religious school in NSW dismissed a teacher for living with their partner before marriage (regardless of whether that teacher is practising a religion), it would not be direct religious discrimination, although it could be discrimination on the ground of relationship status.

Please contact David Ford if you would like further advice on the issue of workplace discrimination.

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