Protecting the religious beliefs of employees

Can an employer lawfully treat an employee less favourably, including dismissing them, because of behaviour in their private life which runs contrary to the employer’s religion or belief?

G worked at an independent charity–run ultra-orthodox Jewish Nursery. She is Jewish and was brought up in an ultra-orthodox Jewish family. She was well regarded at the nursery and worked there for nearly 4 years. She was dismissed after it became known in the community that she was cohabiting with her boyfriend and they were not married. This is against ultra-orthodox Jewish beliefs.

After failing to resolve matters informally, the nursery took disciplinary action against G alleging she had acted contrary to the nursery’s ethos, had damaged its reputation and risked losing income through parents withdrawing children. She was dismissed at a disciplinary hearing held in her absence.

The employment tribunal found in the employee’s favour in her claims for direct sex discrimination, harassment related to sex and direct and indirect religion or belief discrimination. The nursery appealed to the Employment Appeal Tribunal (EAT).

We took this case because we are committed to ensuring that people in Britain have equal access to the labour market and are treated fairly at work. 

We provided legal assistance. 

The EAT upheld the tribunal’s findings of sex discrimination and harassment related to sex. It overturned the employment tribunal’s decision that the employee had been subjected to indirect religion or belief discrimination as there was a lack of evidence that the nursery had applied a provision, criterion or practice.

The main point of interest in the case was the direct religion or belief claim. On this, the EAT found that the nursery had treated the employee less favourably because of its own religious beliefs, the fact that the employee had acted contrary to them and their resulting concern for the reputation of the nursery. They did not act as they did because of the Claimant’s religious beliefs or lack of such beliefs.

The EAT followed the decision of the Supreme Court in Lee v Ashers Baking Company Ltd, a case which related to the provision of a service rather than employment as in this case. In Lee, it was said 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.

It is not the protection of persons without a protected characteristic from less favourable treatment because of a protected characteristic of the discriminator. Therefore the claim of direct discrimination failed.

This ruling means that the principle that legal protection from discrimination on the grounds of religion or belief covers only the claimant’s religion, belief or lack of religion or belief and not the alleged discriminator applies in the employment context as well as the services context.

This case provided greater clarity around the provisions of the Equality Act 2010 governing religion or belief discrimination at work.