Written by Yavnik Ganguly – Paralegal, Employment and Professional Discipline

Implications for practitioners

This case concerned the respondent’s appeal against the ET’s decision to uphold the claimant’s direct and indirect discrimination claims on grounds of religion or belief, as well as direct discrimination and unlawful harassment on grounds of sex. This case summary focuses on the judgment’s important implications for direct discrimination claims on the grounds of religion or belief. Most significantly, Swift J concluded that discrimination claims cannot be brought on the grounds of a protected characteristic possessed by the employer, applying the ruling in Lee v Ashers Baking Co. Limited [2018] UKSC 2017/0020, Briefing 872, to employment case law.

Facts

The respondent (R) employed the claimant (ZDG) as a teacher in its nursery which was run in accordance with Jewish ultra-orthodox Chabad principles. ZDG and her boyfriend attended a barbeque at which nursery staff members and parents of children who attended the nursery were present. During the course of the barbeque, ZDG’s boyfriend mentioned to one of the nursery’s directors that he and ZDG lived together. R alleged that this caused concern amongst some of the parents in the community, as many of them held the belief that co-habiting with partners before marriage contravened the laws of Judaism.

Subsequently, ZDG was called to a meeting with the head-teacher and managing director of the nursery. ZDG was told that her private life and whether or not she lived with her boyfriend was of no concern to R. However, ZDG was asked to say to R that she no longer lived with her boyfriend, so R could relay this to concerned parents who might raise issues with the nursery. R acknowledged that this solution entailed ZDG acting dishonestly in relation to her private life. ZDG was upset by this request and later asked for an apology and a promise not to be ‘harassed’ in this way again. R did not provide this.

R initiated a disciplinary process which eventually led to ZDG’s dismissal. A letter outlined the dismissal grounds, namely that:

• ZDG had presented herself in such a way that proved she had acted in contravention of the nursery’s culture, ethos and religious beliefs;

• She had damaged R’s reputation through complaints made by parents;

• Her disclosure had potentially led to R’s financial detriment.

ZDG is a practicing Jew herself. She claimed that R had discriminated against her because she did not ascribe, as R did, to the tenet of the religion which forbids partners from co-habitation before marriage.

Employment Tribunal

The ET concluded that R had directly discriminated against ZDG during the numerous encounters they had with her after the barbeque leading up to her dismissal, and in dismissing her. The ET concluded that the treatment was directly linked to R’s belief in the prohibition of co-habitation for unmarried couples and ZDG’s lack of belief in this prohibition.

Employment Appeal Tribunal

R appealed the ET’s ruling in regards to all the claims brought by ZDG. R’s appeals against the ET’s finding of sex discrimination and harassment against ZDG were dismissed.

In relation to the direct discrimination claim on grounds of religion or belief, Swift J allowed the appeal and disposed of the claim. Swift J ruled that the ET had erred in law by concluding that s10 of the Equality Act 2010 (EA) prohibits less favourable treatment of an employee by an employer on the basis of the employer’s own religion or belief. Swift J cited Lady Hale’s reasoning in her judgment in the Ashers Baking case.

In that case Lady Hale stated that the purpose of discrimination law is to protect individuals with a protected characteristic from less favourable treatment because of that characteristic; its purpose was not to protect individuals without a protected characteristic from less favourable treatment because of a protected characteristic held by the discriminator. Lady Hale stated that any conclusion to the contrary would run against the principle that a discriminator’s motive for less favourable treatment is irrelevant. Further, any claim that rested on the protected characteristic of religion or belief held by the respondent would fail the less favourable treatment test, because the respondent would act on the grounds of their own religion or belief regardless of who was affected. Therefore, it could be assumed that R would treat ZDG the same as any comparator and the requirement for less favourable treatment would not be satisfied.

Swift J then provided reasoning as to whether ZDG was treated less favourably because of her own lack of belief in the prohibition of unmarried couples cohabiting. He stated that in order to conclude that R acted because of ZDG’s lack of belief, it would have to be shown that R’s concerns extended well beyond the risk of reputational harm to a ‘free-standing concern’ that ZDG’s beliefs were not the same as its own. Swift J concluded that this was not true on the facts of this case, stating that R acted on its own beliefs and ZDG’s non-compliance with those beliefs.

On the above reasoning, the appeal against the ET’s finding of direct discrimination on grounds of religion or belief was upheld and this claim was dismissed.

Swift J went on to consider a further question of law put forward by R in its appeal. Namely, whether s10 EA applies to situations where both the claimant and the respondent are members of the same religion but the claimant is treated less favourably because of their lack of belief in an aspect of the (otherwise) shared faith. Swift J concluded that s10 does protect the claimant in situations of this kind, relying on explanatory notes to the EA which state that one purpose of the Act was to strengthen the law to support progress on equality.

Comment

Swift J’s analysis on this case provides important guidance for practitioners bringing discrimination claims on the grounds of religion or belief. Perhaps the most interesting reasoning provided by Swift J is that, for a respondent to discriminate against a claimant on the grounds of belief or lack of belief held by the latter, it has to be proven that R’s concern goes farther than reputational risk to a ‘free-standing’ disagreement with the claimant’s views. This appears to contradict the acknowledgement by the judge that the motive of the ‘discriminator’ is irrelevant.

In many cases where an individual is treated less favourably because of a protected characteristic, religion or belief or otherwise, the employer does not act out of an express disagreement or bias against the claimant’s protected characteristic. Often employers justify less favourable treatment because of perceived benefits to their business, such as protection of reputation. This reasoning seems to narrow the circumstances in which direct discrimination for religion or belief can be claimed, to situations where employers act out of dislike or disagreement with the religion or belief of the employee. This would exclude circumstances where employers act out of concern for the effects of the employee’s religion or belief on the business.

This article was first published in the Discrimination Law Association Briefing 897-908