You may recall the Northern Irish case of Lee v Ashers Bakery Co Ltd last year where the Supreme Court found that the bakery did not discriminate against Mr Lee by refusing to bake him a cake with a slogan, which supported gay marriage. In Lee, it was found that there was no discrimination where the reason for refusing to bake the cake was the bakery’s religion or belief and not that of Mr Lee’s religion or belief or sexual orientation.

A similar issue arose in the recent Employment Appeal Tribunal (EAT) case of Gan Menachem Hendon Limited v De Groen. In Gan:

• Ms De Groen was employed as a teacher in a Jewish nursery run by Gan. The nursery operated under strict orthodox Hasidic principles. Ms De Groen herself is Jewish.
• Gan became aware that Ms De Groen was living with her boyfriend and that this information had been shared at a social event which was attended by parents of children who attended the nursery.
• Ms De Groen’s own belief was that co-habiting outside of marriage was not wrong.
• The nursery’s head teacher and managing director then met with Ms De Groen and told her that co-habitation and having children outside of marriage was wrong. They also suggested that Ms De Groen was growing too old to have children and that she should seek counselling if she had any difficulties with the idea of marriage.
• Perhaps most surprisingly, Ms De Groen was also asked to lie by informing people that she did not co-habit as a means of allaying any concerns of the parents who had children at the nursery and therefore Gan’s customers.
• Ms De Groen was called to a further meeting at which she was dismissed from her employment. She subsequently issued Employment Tribunal proceedings and was successful in claims of direct sex discrimination and harassment, and direct and indirect discrimination on the grounds of religious belief.
• Gan then appealed the Tribunal’s decision to the EAT.

The EAT upheld the Tribunal’s decision on the direct sex discrimination claim. However, the EAT also found that the Tribunal was wrong in deciding that Ms De Groen had been unlawfully discriminated against on the grounds of religious belief. The Tribunal was found to have erred in determining that the Equality Act 2010 prohibited less favourable treatment by an employer because of its own religion or belief.

The EAT held that Gan had acted as it did because of its own religious belief. The fact that Ms De Groen did not subscribe to the same belief did not support a conclusion that the action was taken because of her own belief, or not believing in the same principles of Judaism as Gan did.

The decisions in both Lee and Gan may seem surprising, given the protected characteristics of Mr Lee and Ms De Groen and what appears to be less favourable treatment in both cases. However, it is clear that all cases must be dealt with on their own facts and that any decisions involving religion or belief must be analysed in terms of legal, practical and reputational risk.

Recommendation

Employers should review their policies on equality and diversity to ensure that there is protection for employees’ religion or beliefs in the workplace. It would also be sensible to check that any policies on cohabitation or marital status are legally compliant.

For further help and advice on this or other employment issues, please get in touch with our friendly team today by e-mailing enquiries@andrewjackson.co.uk or by calling 01482 325242