Religious discrimination: the implications of “gay cake”

Religious discrimination: the implications of “gay cake”

An Orthodox Jewish nursery in London that sacked a teacher after it learned she was living with her boyfriend has won its appeal against religious discrimination. The Employment Appeal Tribunal applied the findings in the “Gay Cake” case and ruled that the nursery was acting on its own beliefs in a consistent manner and was therefore not discriminating against the teacher based on her religious beliefs. However, it was held that she had been the victim of sex discrimination and harassment by the nursery.

In the case of Gan Menachem Hendon Ltd v De Groen, Ms De Groen was employed by the Gan Menachem Hendon nursery from July 2012 until her dismissal on 26 July 2016. Gan Menachem is an ultra-orthodox Jewish nursery affiliated with the Chabad Lubavitch Hasidic movement.

The nursery discovered that Ms De Groen had been living with her boyfriend, contravening their religious beliefs of the nursery, and called a meeting in which the nursery directors expressed the view that cohabitation outside marriage was wrong in a “humiliating interview” with a “threatening tone”. After refusing to lie about her living arrangements and asking for an apology she was dismissed with immediate effect.

Only the appeal of sex discrimination was upheld

Despite winning claims of discrimination on the grounds of both religious belief and sex before the Watford employment tribunal, only the appeal of sex discrimination was upheld after the nursery appealed to the Employment Appeal Tribunal.

Although Section 10 of the Equality Act 2010 protects employees against discrimination because of religious belief, Judge Swift decided that the initial tribunal’s findings of religious discrimination had been incorrect. He cited Lee v Ashers Baking Company Ltd, commonly known as the “Gay Cake” case, in which the Supreme Court ruled the baker was not discriminating against an individual’s personal characteristics when it refused to ice a pro-gay marriage slogan on a cake because it would have refused to display the same slogan whatever the sexuality of the customers.

Judge Swift said: “I cannot see how it could have been open to the tribunal properly to conclude that the provision, criterion or practice it had identified would give rise to any particular comparative disadvantage for Ms De Groen and other Jews who shared her belief that cohabitation outside marriage was not contrary to their faith.”

The tribunal decided that the nursery would have dismissed any employee for cohabitating outside of marriage regardless of their religion. The decision can be viewed as affirming the notion of “religious autonomy” whilst reiterating the ruling in the “Gay Cake” case, showcasing how the Equality Act is designed to protect potential victims from discrimination because of their protected characteristics without being concerned with the characteristics or motivations of the perpetrators.

What this means for businesses

The ruling will provide comfort for religious employers as it enables them to impose their own ethos and values without running the risk of discriminating against one of their employees, however, they must continue to be specific about what their requirements are in order to avoid litigation.

Meanwhile, the Employment Appeal Tribunal upheld the previous ruling that Ms De Groen had been the victim of discrimination and harassment by the nursery because she was a woman. She suffered direct sex discrimination as the nursery’s attitude to co-habitation was because of sex and a man would not have been in the same way.

For more information, please get in touch with Claire, Rebecca and Rachael in our employment team.

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