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Members Newsletter March 2019

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Whose belief matters anyway? 

To what extent do employers have to accommodate an employee’s belief when trying to follow their own?

It may be the case that Employers are able to take some comfort that the Employment Appeal Tribunal (“EAT”) have ruled that in certain circumstances the religion or belief of the employer is pivotal and the focus is not the belief of the employee.  There is plenty to still be cautious about though as we explain.

Earlier this year the EAT in Gan Menachem v de Groen overturned an Employment Tribunal decision that a teacher was unfairly dismissed on the basis of her religion.  The facts were that the employee worked at what describes itself as an ultra-orthodox Jewish nursery school.  She was herself raised as an ultra-Orthodox Jew (and so understood its beliefs and practices) but at the time she joined the school she did not regard herself as “ultra-Orthodox”.  She was still though practising the Jewish faith.  The teacher was dismissed because she was cohabiting with the man whom she later married.

The co-habitation came out at a barbeque in front of some parents who had children at the Nursery.  This was going against the Nursery’s culture, ethos and religious beliefs.  In terms of her own belief set, she did not agree with the prohibition of non-marriage co-habitation as representing a fundamental tenet of ultra-Orthodoxy.  Nevertheless, the Nursery believed that the teacher she would gradually return to the practices of ultra-Orthodoxy.

The Nursery asked the teacher to confirm to them that she no longer lived with him.  She refused to do this and was thereafter dismissed.  It is worth noting that the Nursery assured the Teacher that what she did in her private life was of no concern to them.

The teacher was successful at the Employment Tribunal but the employer appealed.  The EAT upheld the appeal, finding in the Employer’s favour.  The crucial point was that the Nursery acted because of its own beliefs and Ms De Groen's non-compliance with those beliefs.  It did not act on the basis of her religion and therefore there could be no religious discrimination.

However, this may not have been the holy grail answer the employer was looking for.  The teacher still at appeal won her claims for direct sex discrimination and harassment.  This case is testament to the fact that the law is still extremely complicated to navigate when region and belief come into play in the workplace.

Moreover, it is highly recommended to have policies, practices and procedures in place to safeguard against such claims because whatever the end result, there is no doubt that this was a highly sensitive publicly fought matter for the Nursery to have to deal with which still left them with costly legal frees in the long run.

Should you require any further information, please do not hesitate to contact us on 0161 837 6844 or via email [email protected].

Carley Dhand, Employment Specialist at Linder Myers Solicitors advises:-

 “Is it discriminatory if we, as a GP Practice, offer extra paid holiday to those employees wishing to observe certain religious holidays or occasions?”

An employer that offers more paid holiday to one group of particular employees, to observe religious occasions, is at risk of opening itself up to potential discrimination claims that it is treating employees who do not follow a particular religion or any religion at all, less favourably.

The definition of direct discrimination under the Equality Act 2010 provides that discrimination occurs where, because of religion or belief (or lack of religion or belief), a person (A) treats another (B) less favourably than A treats or would treat others.

In the circumstances,  employees who are not receiving extra paid holiday could allege that due to a lack of a particular religion or belief they are being treated less favourably and therefore being discriminated against.

If you require further advice on this please do not hesitate to contact us on 0161 837 6844, or email us on [email protected].

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