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Employment Law Case Update: De Groen v Gan Menachem Hendon Limited

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A recent case has highlighted the complicated nature of discrimination claims and protected characteristics; our Employment team review the case here and advise employers on their best course of action.

In the case of De Groen v Gan Menachem Hendon Limited, Ms De Groen was employed by Gan Menachem nursery (“the Nursery”) from July 2012 until she was dismissed on 26 July 2016. The Nursery is a Jewish nursery which is run in accordance with ultra-orthodox principles.

The Nursery became aware that Ms De Groen was living with her boyfriend. Following this discovery, a meeting was held between Ms De Groen, the Nursery’s head teacher and its Managing Director. Ms De Groen was asked to confirm whether she was still living with her boyfriend in order for the Nursery to inform concerned parties.

Ms De Groen confirmed that she was still living with her boyfriend. The Nursery expressed their view, in accordance with their beliefs, that cohabitation and having children outside of marriage was wrong.

Ms De Groen was then dismissed on 27 July 2016 as she had acted in “contravention of the nursery’s culture, ethos and religious beliefs”. The Nursery further added that the complaints the Nursery had received from parents had damaged their reputation.

Ms De Groen brought claims of discrimination on grounds of sex and on grounds of religion and/or belief. The Employment Tribunal (ET) found in her favour on all claims.

The Nursery lodged an appeal at the Employment Appeal Tribunal (EAT). The EAT ruled that the claim for religious discrimination had been decided incorrectly. The EAT referred to the judgment of Baroness Hale in the case of Lee v Ashers Baking Company Ltd, finding that it was the religion or belief of the Nursery that was relevant in this case rather than a protected characteristic of Ms De Groen. Baroness Hale concluded that the purpose of discrimination law is the protection of a person who has a protected characteristic from less favourable treatment because of that characteristic, not the protection of persons without that protected characteristic from less favourable treatment because of a protected characteristic of the discriminator.

The EAT upheld the original decision in relation to Ms De Groen’s claims of discrimination and harassment on the grounds of sex.

The facts of this case are complicated, and it is important for employers to remember that the ET will view matters of this nature on a case by case basis. If you have any questions, or you are concerned about discrimination claims due to protected characteristics, please do contact us today on 023 8071 7717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.