Religious discrimination claim – whose religion?

The Employment Appeal Tribunal (EAT) has held that where an employer (or individuals on behalf of the employer) acts because of their own religion or belief, this may not lead to an employee bringing a successful claim for direct discrimination on grounds of religion or belief. The EAT upheld the employer’s appeal, overturning the Employment Tribunal decision.

The case involved a teacher at a nursery run in accordance with ultra-orthodox Jewish principles, who was dismissed after complaints made by parents who were aware that she was cohabiting with her partner. At a meeting, the headteacher and the nursery’s managing director expressed the view that cohabitation outside marriage was wrong, and suggested that a potential solution would be for the employee to state that she was no longer living with her boyfriend, so that they could tell parents that this was what she had informed them. However, she refused to do this and following disciplinary proceedings she was dismissed. The letter of dismissal included a number of grounds for dismissal: “acting in contravention of the nursery’s culture, ethos and religious beliefs”; damaging the nursery’s reputation; and financial detriment from parents threatening to withdraw their children. The employee brought claims of direct discrimination and harassment on the ground of sex, and direct and indirect discrimination claims on the ground of religion or belief.

The Employment Tribunal upheld all the claims and the nursery appealed. The EAT allowed the appeals against the findings of direct and indirect religion or belief discrimination, but upheld the Employment Tribunal decision that the claims of direct sex discrimination and harassment on the grounds of the claimants sex could stand.

The EAT found that the tribunal had erred by concluding that a direct discrimination claim could arise from the employer acting because of its own religion or belief. It referred to the case of Lee v Ashers Baking Co Limited [2018] in which a bakery had refused to supply a cake iced with the message “support gay marriage” because of its owners’ objections on religious grounds to gay marriage.  The purpose of discrimination law is the protection of a person who has a protected characteristic from less favourable treatment because of that characteristic, not the protection of persons without that protected characteristic from less favourable treatment because of a protected characteristic of the discriminator.  The EAT commented that it is an important principle of discrimination law that a discriminator’s motive for less favourable treatment is immaterial.  Any direct discrimination claim based on the discriminator’s own protected characteristic would be doomed to fail, as a discriminator acting because of their own belief would act in the same way regardless of who was affected.   The EAT also rejected the argument relating to associative discrimination.  It pointed out that no claim asserting associative discrimination rests on the premise that the discriminator is acting because of its own protected characteristic.  Finally in relation to the direct discrimination claim, although the EAT was not required to do so, it went on to consider whether the nursery had any religious occupational requirement. It held that the tribunal had been right to find that there was no genuine occupational requirement, either for the employee not to cohabit or that she should not communicate her views to parents.

An indirect discrimination arises where an employer imposes a provision, criterion or practice (PCP) which puts the claimant at a disadvantage. The tribunal had found that the nursery applied a PCP of requiring the employee to be prepared to make a dishonest statement about her private life in order to remain employed. The EAT held that the tribunal had erred in making this finding.  Whilst acknowledging that where an action arises from conduct (and not a formal statement of practice or policy), the line between a PCP and a simple response to events can be difficult to draw. In this case there was no direct evidence that this was anything other than an ad hoc measure and insufficient evidence to allow an inference that it was a PCP.  As no PCP could be identified, there could be no claim of indirect discrimination on grounds of religion or belief.  In any event even if the PCP did stand, the EAT held that any comparator group would have been disadvantaged in equal measure by being required to lie about their religion beliefs in order to retain their employment.

The remaining claims of direct discrimination and harassment on grounds of sex were remitted to the tribunal to consider remedy.