Declan O’Dempsey considers judgment in Gan Menachem Hendon Ltd v. De Groen

The Employment Appeal Tribunal (Swift J) last week handed down judgment in a religion and belief case Gan Menachem Hendon Ltd v. De Groen [2019] UKEAT 59/18 which deals with discrimination motivated by the belief of the perpetrator under the Equality Act 2010 (“the Act”).  This blog by Declan O’Dempsey analyses the case as it relates to direct discrimination because of religion and belief, and discusses the implications of the EAT’s views on “associative” discrimination.

This was a claim primarily for direct religion and belief discrimination under s 13 of the Act. It has interesting things to say about occupational requirements and indirect discrimination also but this blog is concerned solely with the direct discrimination aspect of the case.

Factual background

The claimant was employed as a teacher and team leader at a Jewish nursery affiliated to part of the Hasidic group. It is run in accordance with ultraorthodox principles within the Jewish religion.

On 27 July 2016 the claimant was dismissed summarily because she had allegedly presented herself in such ways to prove that she was acting in contravention of the nursery’s culture, ethos and religious beliefs. The claimant was accused of attending a barbecue affiliated to the nursery with her partner at which she openly discussed the fact that she was living with her partner. The reasons for dismissal said that

“the nursery and its ethos, together with the culture and values we promote are essential to the successful running of the business. Your disclosure has resulted in third-party pressure from parents threatening financial hardship to the business.”

The decision-makers in the nursery had expressed a view at a meeting with the claimant that cohabitation outside marriage was wrong, that having children outside marriage was wrong, and that at the claimant’s age, time was passing for her to have children.  The nursery’s management talked to the claimant about her living arrangements. They said that one way out of the problem was for the claimant to tell the nursery that she was not living with her partner knowing that she was. The employment tribunal had accepted that the management deliberately indicated that this might be an acceptable solution. In other words the nursery wanted the claimant to lie to them and tell them that she did not live with her boyfriend.

Equality Act 2010 and Religion and Belief

The claimant brought claims for direct discrimination on grounds of sex and on the grounds of religion and  belief; for indirect discrimination on the grounds of religious belief and for unlawful harassment on grounds of sex.

Judgment – direct discrimination because of religion or belief.

Swift J identified the question relating to direct discrimination as whether the tribunal was right to conclude that direct discrimination could be sustained simply on the basis that an employer acted because of its own religious belief.

He also considered the question of whether the protected characteristic of religion and belief covers the circumstances in which the claimant and respondent are of the same religion but the claimant is treated less favourably because of a lack of belief on a point that the respondent considers to be a tenet of that religion.

Discrimination on the basis of the employer’s own religion or belief.

Section 10(1) of the Act provides:

“Religion means any religion and a reference to religion includes a reference to a lack of religion”

Swift J concluded that section 10 (1) of the 2010 act does not prohibit less favourable treatment by an employer on the basis of the employer’s own religion or belief.

The reasoning relies on Baroness Hale’s judgment in Lee v Ashers Baking Co Ltd (2018) 3 WLR1294 at paragraphs 42 – 45. Lee was a case that had been brought in Northern Ireland about the refusal of a service provider to supply an iced cake with the message “support gay marriage”.

Swift J referred to Baroness Hale’s view that the purpose of discrimination law was the protection of a person who had a protected characteristic from less favourable treatment because of that characteristic. It was not the protection of persons without that protected characteristic from less favourable treatment because of a protected characteristic of the discriminator. Swift J said, summarising Baroness Hale’s views, that any conclusion to the contrary would run against the principle that the discriminator’s motive for the less favourable treatment is immaterial.

“More importantly any direct discrimination claim that rests on the discriminator’s protected characteristic would be doomed to fail because any comparison between the person receiving less favourable treatment and “other persons” will always produce the results that there had been no difference in treatment since it could be safely assumed that the discriminator acting on the grounds of his own political (or religious) belief would act in the same way regardless of who was affected.”

Swift J then refers to what he calls “associative discrimination”. He says that the tribunal’s reference to associative discrimination as a reason for its conclusion that the claim could be founded on the nursery’s religious belief was a non sequitur. He cites “classic instances” of associative discrimination. These are situations where a claimant is treated less favourably because of her connection to a person who has a protected characteristic and situations in which the discriminator wrongly believes that the claimant has a protected characteristic.

These are not the classic cases and Swift J incorrectly cites English v Thomas Sanderson Blinds Ltd in support of his point (see English v Thomas Sanderson blinds Ltd (2009) ICR 543, see para 4 of EWCA report and para 6 of EAT report).  Contrary to the EAT’s belief Sanderson is expressly premised on the fact that everyone knew that the alleged protected characteristic of being gay did not apply to the claimant in that case.  English stands for the proposition that reliance on the prohibited characteristic regardless of its possession by any specific person(s) is sufficient.   Swift J misconstrues the scope of “associative” discrimination. Perhaps the label itself is misleading.

Swift J goes on to say:

“no claim asserting associative discrimination rests on the premise that the discriminator is acting because of his own protected characteristic; nor can any claim of associative discrimination rest on an association of the claimant with the discriminator’s protected characteristic.”

This reasoning misunderstands the function of the Directive 2000/78, as explained in Coleman by both the Advocate General and the CJEU.

Comment

The EAT appears to have misunderstood the principles set out at paragraphs 50 and 51 of the Judgment in Coleman and of the AG’s explanation of the way in which Directive 2000/78 functions.  The AG’s explanation in paragraphs 15 and following is that the main duty imposed by the Directive is to treat people in a certain way which is comparable to how others are treated. By adopting the Directive the Council has made it clear that it is wrongful for an employer to rely on any of these grounds in order to treat an employee less well than his or her colleagues. “As soon as we have ascertained that the basis for the employer’s conduct is one of the prohibited grounds then we enter the realm of unlawful discrimination.” (AG para 17).

The AG went further:

“AG18 In the sense described above, the Directive performs an exclusionary function: it excludes religious belief, age, disability and sexual orientation from the range of permissible reasons an employer may legitimately rely upon in order to treat one employee less favourably than another. In other words, after the coming into force of the Directive it is no longer permissible for these considerations to figure in the employer’s reasoning when she decides to treat an employee less favourably.”

The Coleman judgment also makes the same point at paragraph 50 – 51.

There is no basis in the Directive for making lawful less favourable treatment based on protected characteristic beliefs from the general scope of protection.  Thus if I treat you less favourably because my philosophical belief tells me that what you are doing is unacceptable, the characteristic of belief (that the behaviour is unacceptable) is the ground of my treatment of you. There is a basis (Article 4 Directive 2000/78 for excluding treatment based on an Occupation Requirement in certain situations.  However this does not remove treatment based on the perpetrator’s own philosophical belief from protection generally.

It is only if one illegitimately restricts “associative discrimination” to a characteristic possessed by a person with whom the subject of discrimination is associated, that one can reach the conclusion of the EAT.  The Directive prohibits the use of the characteristics as irrelevant in decision making.  If that analysis is adopted, as it should be, motive for treatment plainly can be relevant in the sense that the characteristic is the basis of the treatment.

When I act because of my protected beliefs, those beliefs motivate my action and are the ground of my action.  The EAT’s reference to the idea of motive being irrelevant in direct discrimination appears to be a misreading of cases dealing with situations where a person acts from a good motive but in a way which is based for some other reason on a protected characteristic (see discussion in Regina (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2010] 2 A.C. 728).  

Treating the “other” less favourably

If I treat you less favourably because I think you do not possess my belief that behaviour Y is wrong, and hence you do not believe that behaviour Y is wrong, the basis of treatment is either my belief or your not possessing that belief (or my belief that you do not possess it).   If I believe that premarital cohabitation is wrong, and I believe you to be cohabiting premaritally, and because of those two factors treat you less favourably than if I did not believe it to be wrong (even if I believed that you were premaritally cohabiting) the protected characteristic of belief plays an operative part in my less favourable treatment of you.

The treatment of the “other” (a person who does not share my world view) because they are other in this sense appears to be based on belief.

Comparators

The less favourable treatment can be identified by consideration of the comparable circumstances of the comparator.  It must be a person from whose situation the protected characteristic is excluded (see Lockwood v DWP [2014] ICR 1257). Thus it must be a person where my protected characteristic belief is not present.   If the case is based on my protected characteristic the comparison is someone who does not have that belief.  Matters which are closely associated with the protected characteristic should also be excluded.

This gives rise to the problem of how to deal with behavioural beliefs.  If I have a belief which says that behaviour ABC is permissible, this means that I can (and may in appropriate circumstances) engage in ABC.  If I have a belief that ABC is wrong this means that (all other things being equal) I will not engage in ABC.  My approval of ABC or disapproval of it may form the basis of my action. Clearly approval does not require me to do ABC, but it means that if I wish to do ABC, I can without inconsistency. If I believe it is wrong, on the other hand I cannot do ABC without inconsistency with my belief that it is wrong (save in non-voluntary circumstances).  It is possible, in the case of the permissive belief, to separate the action from the belief.  It is not a necessary consequence.  However (see Lockwood) it does not have to be a necessary consequence of the protected characteristic.  It simply has to be a likely concomitant.

This means that if I treat you less favourably because you engage in the behaviour closely associated with thinking that ABC is permitted (namely doing ABC), the correct comparator is someone who does not engage in ABC.

Why Lee does not force a different result

The case of Lee was decided in a non-employment context.  It was not necessary to give effect either to the interpretive force of the Charter or the Directive.  However in the employment context these must be given effect. This means, if necessary, disapplying a provision of national law which runs counter to the provisions of the directive.  No consideration of this point of distinction appears to have happened in this case.  Section 10 Equality Act 2010 needs to be construed in accordance with the properly interpreted Directive 2000/78 for this conclusion to be reached.  The fact that the human rights of those involved in a services case requires a different interpretation in that context (Lee) does not require that more limited interpretation to be applied in a context where EU law must be observed.

It is in this context that Swift J’s discussion of the legislative change between the Employment Equality (Religion or Belief) Regulations 2003 and the 2010 Act must be read.  In the former there was a provision that required the employee to be discriminated against on the basis of his or her own religious belief. The tribunal had noted that those words had ceased to be in the legislation and concluded that this makes room for discrimination claims where the discriminator had acted on the basis of its own religion or belief. Swift J said that neither the presence nor absence of such words is capable of undermining Baroness Hale’s reasoning in Lee.  However Baroness Hale’s reasoning was reached without having to apply the principles in Coleman because she was not considering a case to which EU law applied.

Same religion – does it make a difference?

Having found that the appeal succeeded in relation to direct religion and belief discrimination, the EAT went on to consider the argument that where both claimant and respondent are members of the same religion, if the claimant does not accept a particular tenet of the religion and is for that reason less favourably treated by the employer, that is not treatment “because of a lack of religion” or “lack of belief” for the purposes of section 10 (1) and/or (2) of the 2010 act.

Swift J noted that the case was about differing religious belief within the religion and remarked that it was in the nature of many organised religions that there would be differences of opinion. He considered it important that the members of religions remain members of the same religion for this purpose.

A persistent failing of those who consider the characteristic of religion and belief is to consider the characteristic modelled on the concept of religion.  This over focus tends to mask the fact that belief as a characteristic operates in a completely different way and requires more detailed consideration. Two members of a religion may have different belief characteristics.

The EAT reaches the correct conclusion on this point on the construction of the wording of section 10 of the Equality Act:  “as a matter of ordinary language, [it] is certainly capable of being construed as applying to situations where both the Claimant and the Respondent are members of the same religion and the latter less favourably treats the former because of her lack of religious belief on an aspect of the (otherwise) shared faith.”

It is always essential therefore to consider whether there has been discrimination on the basis of belief in these types of cases. Those beliefs may be different doctrinal beliefs belonging to members of the same religious group.

The conclusion reached on this point may be felt to jar with the conclusion reached on whether my belief (which you do not share) can form the ground of my treatment of you.  However it does not. The treatment I give you because you do not share my protected belief is based on something more than the non-possession of my belief by you.  The more is an additional belief that I should treat others who do not share my belief on the basis of them not sharing that belief. However how easy is it to distinguish between treatment of you because you do not share my belief and treatment because I hold a belief and you do not share it, and I believe that I should treat people on the basis of whether they hold the same belief as me?

Conclusion

There is a good chance that this case will not be appealed further.  It was a mixed result for the appellant. It therefore sits as a precedent for tribunals.  However it is also plain that a tribunal could, properly applying Coleman, disregard the EAT’s remarks on the role that a potential perpetrator’s own belief plays in this type of discrimination in employment law.

The case leaves many problems in its wake.  If the EAT is right, an assertive employer can emphasise their own intolerant beliefs as being the ground on which the less favourable treatment is based. These apparently are to be ignored. If the intolerance of the belief is not sufficient to take it outside the Nicholson v Grainger scheme of protection for beliefs, then it may give rise to an improper exclusion of less favourable treatment based on such beliefs.

The alternative interpretation also has problems. Is it really right that an employer who happens to hold the protected characteristic belief that “lying is always wrong” should not be able to insist on the tribunal ignoring that belief when they have disciplined a person who has lied and would not discipline a person who has not lied?

The solution to that problem according to my critique above of the EAT judgment would be to say that if an employer holds a belief so dearly, this should be set out as a Occupational Requirement under Article 4.  However this is a very imperfect solution to the problem.

Ultimately the question in employment law of the scope and nature of the nondiscrimination provisions relating to philosophical belief and religion needs to be the subject of the decision by the the Court of Appeal, and probably of the UKSC.