UK EAT finds woman not directly discriminated against when dismissed due to cohabiting outside marriage

The Employment Appeals Tribunal in the UK has found that an employee was not directly discriminated against because of her religion when she was dismissed due to cohabiting with her partner.

The claimant was employed as a nursery teacher and team leader with a Jewish nursery run in accordance with strict Jewish principles. The claimant was Jewish and lived with her partner, unmarried. The claimant attended a company barbeque with her partner where she openly discussed the fact that they were living together.

The claimant was soon called to a meeting where she was told that she risked damaging the reputation of the nursery and that cohabitation outside of marriage was wrong. The nursery suggested that she would be able to continue her employment if she told them she was no longer cohabiting with her partner, even if untrue. When she refused to do this, she was dismissed. The dismissal letter issued to the claimant outlined that she had presented herself as acting in contravention with the culture, ethos and religious belief of the nursery.

The claimant then brought a claim alleging direct discrimination and harassment relating to her sex, and direct and indirect discrimination on the grounds of religion. The tribunal upheld all of her claims, and the employer appealed to the EAT.

In allowing the employer’s appeal against the finding of direct discrimination on religious grounds, the EAT followed the ruling of the Supreme Court in the ‘gay cake’ case, Lee v Ashers Baking Company. The EAT held that the Equality Act 2010 does not prohibit less favourable treatment by an employer on the basis of the employer’s own religion – the purpose of the law was the protection of a person who had a protected characteristic. The EAT was of the view that the nursery would have treated anyone in the claimants personal situation the same way, regardless of their personal characteristics. There could therefore be no finding of less favourable treatment than a comparator.

The EAT also found that the claimant was not discriminated against due to her lack of belief. It stated that the nursery had acted on the basis of their own beliefs, not the lack of belief of the employee.

The EAT did, however, uphold the finding of direct discrimination on the grounds of sex, particularly in light of the advance intentions of the employer to discuss ‘possible marriage and possible pregnancy and childbearing in general terms’ as part of the disciplinary meeting. The EAT concluded that the decision to call the meeting was due to her sex.

Click here for the decision in Gan Menachem Hendon Ltd v. De Groen.

Click here for a previous PILA Bulletin article on the Ashers case.



Sustaining Partners