“Living in sin” – it was a phrase frequently heard not that many years ago but now, in a mark of changing times, is seldom if ever heard. However, the phrase, in its literal sense, has resurfaced in what some might consider to be a remarkable decision of the Employment Appeal Tribunal (EAT) in the case of Gan Menachem Hendon Limited v Ms Zelda de Groen.

Ms de Groen worked from 2012 to 2016 at the Gan Menachem Hendon nursery as a teacher. The nursery is linked with the ultra orthodox Chabad Lubavitch Hasidic movement. When attending a barbecue with her boyfriend, he revealed, in the presence of parents of children who attended the nursery and one of the nursery’s directors, that he and Ms de Groen were cohabiting. There followed a meeting between Ms de Groen, the headteacher Miriam Lieberman and the nursery’s managing director, Dina Toron. In the course of the meeting Ms de Groen was told that her private life was of no concern to the nursery. However, she was asked to confirm that she was no longer living with her boyfriend so that “concerned parents” could be notified accordingly. In other words she was asked to lie and refused to do so.

As if that was not enough Ms Lieberman and Ms Toron told Ms de Groen that cohabitation outside marriage was wrong, that having children outside of marriage was wrong and that, at the age of 23, Ms de Groen should be aware that “time was passing” for her to have children. They also suggested that if Ms de Groen had problems with the idea of marriage, she should seek counselling. Ms de Groen was very tearful and distressed. She felt that such a meeting should not have taken place and only continued in her employment because she loved working with the children. Two days later she asked for a written apology and confirmation that it would not happen again. She said that she had taken legal advice. Mrs Toron and Mrs Lieberman said that she was being threatening and aggressive at the meeting (the Tribunal found that she was not, but she was clear and firm). They did not apologise. Instead, they said that they should not have been so nice to her and that they had sufficient “ammunition” to deal with any claim that she might bring. They then cut the meeting short.

The following day Ms de Groen received a letter notifying her of the commencement of disciplinary proceedings. The nursery had taken advice from DAS, an HR advice service. It turned out that the letter had been written by someone from DAS. The tribunal described it as “somewhat confused”, stating that the allegations were based on “an act of SOSR (some other substantial reason)” and included acting in contravention of the nursery’s ethos and beliefs, damaging its reputation and risking loss of income for the nursery as a result of parents withdrawing children. It continued by stating that attempts had been made to resolve the matter informally, (incorrectly) that Ms de Groen had never been asked about her family life and that by alleging this she had manipulated the facts and had closed off any avenue of informal resolution. She was asked to attend a disciplinary hearing. The hearing was postponed and Ms de Groen was subsequently signed off work with a diagnosis of stress. She provided written submissions and the “hearing’ took place in her absence. She was informed that she had been dismissed following a hearing by a “disciplinary hearing”. As the Tribunal described it, “In fact, the panel consisted of Charlotte Rhodes of DAS”.

In cross examination, the Tribunal noted that the “hypocrisy” of encouraging Ms de Groen to lie – “a breach of a fundamental tenet of Judaism” was explored but “no satisfactory answer was provided. The Tribunal also found that the nursery’s case was not assisted by the DAS report which displayed “incompetence and inaccuracy on the part of its author”.

In its judgment the Tribunal found that Ms de Groen was directly discriminated against by reason of her sex and her religion and/or beliefs. She was also a victim of indirect discrimination and harassment. The nursery appealed.

Mr Justice Swift, sitting in the Employment Appeal Tribunal, found that the Tribunal’s findings of fact were a sufficient basis for reaching its conclusions in respect of each of the claims. However, applying the law, the appeal against the finding of direct discrimination was successful because the Tribunal had incorrectly concluded that an employer acting because of its own religion or belief discriminated against its employees, relying on the decision in Lee v Ashers Baking Co Limited, commonly referred to as the Northern Irish “gay cake case”, which I discussed in 2016. Applying this controversial judgment, there was “no sufficient evidential basis for any conclusion that the [nursery] discriminated against [Ms de Groen] because of her religion or belief”.

Similarly, the appeal against the finding of indirect discrimination was allowed on the basis that there was “no sufficient evidence to support the Tribunal’s conclusion that the [nursery] had applied any provision criterion or practice to [Ms de Groen]”. Even if it had, “there was no comparative disadvantage’.

However, the appeals against sex discrimination and harassment failed.

What is to be done about this line of reasoning concerning religious discrimination? While I do not disagree with the legal reasoning applied by Mr Justice Swift, it is hard to believe that the legislators had in mind that such claims would fail, given that the clear objective was to prevent employees from suffering discrimination based on matters relating to religion or belief. As I’ve commented for many years, religion and law are uncomfortable bedfellows (sorry about the pun). It seems that if an employee suffers a detriment because of his or her religious belief then protection is readily available. However, if the apparent discrimination is attributable to the religious beliefs of the employer then that produces a different outcome. Can that really be right? I suspect that the law in this area is far from being settled.