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In Gan Menachem Hendon Ltd v De Groen, we see the first application of the Supreme Court’s somewhat controversial (in some quarters at least) limits on the scope of discrimination protection in the ‘gay cake’ case of Lee v Ashers Baking Company Ltd. Swift J’s judgment also ends with a practical plea about how cases are pleaded that should not fall on deaf ears.
Zelda De Groen is Jewish, both by lineage and practice. She worked as a nursery teacher at Gan Menachem, a nursery in Hendon affiliated to the Lubavitch strand of ultra-Orthodox Judaism. Miss De Groen had been brought up as an ultra-Orthodox Jew, albeit she had strayed a little from that level of religious practice. On Lag B’Omer (the 33rd day after the first day of Passover), it is traditional to attend a bonfire. Miss De Groen attended a communal bonfire and barbecue with her partner. She was not married to him (although she is now), but lived with him. Her partner was speaking at the bonfire to one of the trustees of the nursery when he let slip their living arrangements. Either through overhearing or gossip, parents of children at Gan Menachem found out about Miss De Groen’s living arrangements. Some were concerned. They considered it religiously inappropriate, in contravention of the laws of the Torah. There were some complaints and threats to remove children from the school.
The month after the bonfire, Miss De Groen was called to a meeting. Also in attendance was the nursery’s headteacher and its managing director. Both are also female. They were clearly concerned both by Miss De Groen’s living arrangements, but also (and perhaps moreso) by its potential impact on the nursery. The head and MD concocted (perhaps on the hoof) a cunning plan (of which Baldrick may have been proud). They told Miss De Groen they were not concerned with her living arrangements – what she did in her private life was her own business. However, they wanted her to tell them (so that they could then tell the parents) that she had stopped living with her partner. In other words, they asked her to lie so that they could tell parents that Miss De Groen had told them she had stopped living in ‘sin’.
The head and MD (somewhat undermining their expressed lack of concern about the claimant’s private life) also lectured Miss De Groen about the wrongs of living with a partner outside of marriage, the wrongs of getting pregnant outside of marriage (Miss De Groen was not pregnant) and that at the ripe old age of 23 Miss De Groen was leaving it late have children, and that if she had a problem with the concept of marriage, Miss De Groen should seek counselling.
Miss De Groen was unsurprisingly not particularly pleased by this approach. At a meeting two days later, she told the headteacher and MD that she wanted a written apology and a promise she would not be harassed in that way again. They did not respond in the way requested. Instead, the following day they sent Miss De Groen a letter commencing disciplinary proceedings. It was not the clearest of letters, but it accused Miss De Groen of acting in a manner incompatible with the nursery’s religious and ethical ethos and in a way that damaged the nursery’s reputation and risked a loss of income by the withdrawal of children.
A disciplinary hearing was held in Miss De Groen’s absence, an inaccurate and incompetently drafted report was written, and the claimant was then dismissed.
Miss De Groen presented a claim for direct discrimination and harassment. That relied upon both religion and sex as protected characteristics. She also pleaded a claim for indirect discrimination in relation to Miss De Groen’s religion or belief, reliant on the following PCPs:
The claims relied upon a number of incidents of less favourable treatment/unwanted conduct/particular disadvantage, most notably the conduct of the first meeting and the dismissal.
The Employment Tribunal found in Miss De Groen’s favour in respect of a number of the pleaded incidents, including the two picked out above. The tribunal found those incidents directly discriminatory because of both religion and sex, and dismissed an occupational requirement defence to the allegation that the dismissal was directly discriminatory because of religion. In finding direct discrimination because of religion or belief, the tribunal held that one need not necessarily focus on the claimant’s belief but could rely on the respondent’s belief. It concluded that the nursery treated Miss De Groen less favourably not only due to her beliefs but also due to its beliefs.
Without much additional consideration, the tribunal also found a number of the nursery’s actions to constitute harassment. It also upheld Miss De Groen’s indirect discrimination claim, based on the second proposed PCP.
The appeal was widespread, but this article will focus on the most notable aspects. The EAT upheld the direct sex discrimination claim – the appeal against that decision unsurprisingly had no merit given the nature of the comments made to Miss De Groen about pregnancy and being careful not to leave it too late to get married and have children.
Direct Discrimination because of Religion or Belief
It is the EAT’s treatment of the direct religious discrimination where things get interesting. Swift J took issue with the tribunal’s assertion that a direct discrimination claim can rely purely on enforcement of the respondent’s religious beliefs. He considered that to be a conclusion that could not survive the judgment of Lady Hale in Lee v Ashers Baking at paras 42-45. In that section, Lady Hale dismissed arguments that discrimination can take place purely on the grounds of the discriminator’s religion or belief. Most pertinently, Lady Hale confounded that argument as inconsistent with the comparative exercise – the discriminator exercising his religious belief would treat everyone the same way, and hence would not be treating anyone less favourably than anyone else because of religion.
For Swift J, that showed up the tribunal’s legal error in relying on the nursery’s application of its own religious beliefs in finding direct discrimination because of religion in the way the nursery treated Miss De Groen.
Swift J also dismissed an argument about associative discrimination because case law had never shown that concept to stretch so far as reliance on the discriminator’s protected characteristic. That may be factually correct, but it is surprising that Swift J did not engage a little further with the argument, given the wide way in which the associative scope of direct discrimination was set out by the CJEU in Coleman v Attridge Law, and especially at para 38 where the CJEU held that:
‘The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1’
Also of note is the brilliant opinion in Coleman of Advocate-General Maduro, with its analysis of discrimination law being underpinned by protection of dignity and autonomy.
The employment tribunal did not solely rely on the nursery’s religious beliefs, so Swift J’s finding that protection did not extend to that situation may not have been fatal. However, although the tribunal had referred to the claimant’s treatment resulting from both the nursery’s and Miss De Groen’s religious beliefs, Swift J criticised the tribunal’s conflation without distinction at various points between the claimant’s and respondent’s religious belief. Swift J pinpointed as ‘significant’ how, in dealing with the dismissal, the tribunal relied on the claimant’s cohabitation contrary to the respondent’s religious beliefs, and then denounced as ‘implausible’ the conclusion that the nursery acted because of Miss De Groen’s religious beliefs rather than its own.
Swift J’s conclusion of ‘implausibility’ may well show a naivety about the mindset of the Lubavitch or other religious institutions or personnel. It is entirely possible that had Ms De Groen not been Jewish, she would not have been held to as high a moral or ethical standard, and that neither the nursery children’s parents nor management would have looked to her living arrangements as being required to provide an example to the children. That difference in treatment could result from higher expectations, or from looking inwards for examples of how to live a proper Jewish life, or simply because non-Jewish staff would not be expected to follow the requirements of Jewish law and practice. This is an area not explored by the tribunal and may have resulted from a gap in the areas explored in cross-examination.
After Lee v Ashers Baking, great care needs to be taken in such cases to work out a path to showing less favourable treatment to the claimant or to someone with whom the claimant is associated. It is not clear whether that opportunity was missed by Miss De Groen in the evidential treatment of her claim.
Had Miss De Groen shown less favourable treatment in the manner I identify above, it is clear that Swift J would have found in her favour on the claim of direct religious discrimination. This is clear given that he went on to conclude in a perhaps longer and more circuitous than necessary section that there can be less favourable treatment of a claimant by a respondent of the same religion where the claimant does not accept a particular tenet of that religion. Swift J’s discussion of this issue looked at sources as diverse as Article 9 of the ECHR, Article 18 of the ICCPR and the Parliamentary materials on section 77 of the Equality Act 2006. Notable by their absence were the Supreme Court’s decision in R (E) v The Governing Body of JFS & Others (which held it to be directly discriminatory for the Jewish Free School to refuse admission to students whose Judaism depended on matrilineal conversions not recognised by the Office of the Chief Rabbi) and section 24 of the Equality Act 2010 (which makes clear direct discrimination can be established even though the discriminator shares the relevant protected characteristic with the claimant).
At the end of his judgment, Swift J considered an appeal against the finding of indirect discrimination. This is where the practical advice comes in.
First, Swift J criticised the finding of the existence of a PCP of being prepared to lie about a relationship and/or private life in order to remain in employment. That was not a part of the nursery’s formal policy. If it fell anywhere within the constituent parts of a PCP, it would be a ‘practice’. However, it was clear from the case law (see, eg, Nottingham City Transport Ltd v Harvey) that a practice involves an element of repetition (whether actual or inferable from what happened on a singular occasion). Here, there was no direct evidence to establish this was other than a one-off ad hoc solution.
Secondly, even if this had been a PCP, the tribunal had failed to engage with the requirement to find group disadvantage. The comparative group would also have been required to make untrue statements about matters that were contrary to their religious beliefs to remain in employment. It was difficult to see how comparative disadvantage could possibly be made out.
Finally, Swift J’s practical advice. The indirect discrimination claim had about it an ‘air of unreality’. Whilst there is often a temptation to plead a case in a variety of different ways, that temptation should be resisted where doing so leads to a part of a pleading that is detached from reality. As Swift J put it in understated terms:
‘Claims will not necessarily be improved by the number of ways they are pleaded.’
All practitioners know well the temptation to plead a claim in as many ways as possible, and the sleepless nights that follow from sensible decisions to restrict a pleading to solely those bases of claim that have merit rather than all pleadable bases. However, there is always a danger of legitimacy in over-pleading a case. There is a danger that the good points will be blunted by the bad, and that if a pleading fails to separate the wheat from the chaff it is possible the tribunal will consider it all chaff and no wheat. As Langstaff P put it in the first two paragraphs of the Practice Statement: Notices of Appeal and Skeleton Arguments:
The claim has been remitted to the tribunal to deal with remedy for the findings of direct sex discrimination and harassment related to sex. In a practical sense, it may be that in upholding the appeal against direct and indirect religious discrimination the appeal has not had any discernible impact on quantum. Notwithstanding that uninstructed employment lawyers might urge Miss De Groen to appeal for purely jurisprudential reasons, she may be wise to accept the ruling and not risk the cost implications of appealing to the Court of Appeal. She has little to gain by doing so.
I suspect that from the nursery’s perspective – and perhaps from the perspective of the wider Lubavitch movement – the principal interest in appealing to the EAT (save for the prospect of avoiding remedy) was to remove the stain of religious discrimination in seeking to stay true to its religious beliefs. I doubt that the nursery will be advised to appeal the sex discrimination decision. It is a clear cut case of sex discrimination.
Those hoping for a further appeal and hoping that the Court of Appeal will have a chance to look at the very interesting legal issues raised by the direct religious discrimination claim may be encouraged by the fact that the parties were represented at the EAT by two superstars of the employment bar (John Bowers QC and Robin Allen QC, both with juniors). The costs of litigation to date almost certainly dwarf any compensatory remedy. Where parties take that attitude to litigation, it is that bit more likely that they will not accept a result until there is no other option. We shall see over coming weeks whether either party appeals.