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Legal Corner: Jewish nursery discriminated against cohabiting teacher

28th Dec 2017

Where employees are working within an institution with a religious orthodoxy, there is often an issue as to the extent to which that orthodoxy can be applied to the employees themselves. The Employment Tribunal considered just such a case in its recent decision in De Groen v Gan Menachem Hendon Limited (3347281/2016).

Ms De Groen was employed as a teacher at a private nursery school associated with a synagogue which followed an ultra-orthodox version of the Jewish faith. Ms De Groen had herself grown up in an ultra-orthodox household, but was not content with it and left home at 16 to go to Israel. She returned at 19, after which she began her employment. Although she still considered herself to be a practising Jew, she did not rigorously observe the practices of an ultra-orthodox Jew.

Ms De Groen met the man whom she later married in January 2016. They began co-habiting prior to May 2016. At the end of May, she and her boyfriend were invited to a barbeque at a friend’s house. Some of the nursery’s trustees were present, as were some parents. Her boyfriend informed one of the trustees, in answer to a question about where he lived, that ‘we live in Pimlico’. Ms De Groen did not hide fact that she was co-habiting with her boyfriend. Within the next month, it appears that a few parents spoke to the nursery about the fact of Ms De Groen’s cohabitation, although what was said was not revealed, save that one parent had suggested that they might not allow their child to return to the nursery the following year if they were to be taught by Ms De Groen. As a result, at the end of June, Ms De Groen was called into an impromptu meeting with the nursery manager and the Managing Director to discuss the ‘issue’ of her cohabitation.

They behaved, according to the tribunal, like an ‘overbearing mother and older sister’, suggesting to Ms De Groen that it was wrong for her to live with a man to whom she was not married, that having children outside of wedlock was wrong (and would lead to her dismissal), that Ms De Groen was already 23 and time was passing for her to have children, and that if she had a problem with the idea of marriage she should seek counselling. They also suggested that an acceptable way forward might be for Ms De Groen to lie about the fact of her cohabitation. Ms De Groen was exceptionally upset by this meeting, and therefore asked for a written apology and a promise that she would not be harassed again. The nursery’s response to this request was to instigate disciplinary proceedings on the basis that Ms De Groen had acted contrary to the ethos of the nursery and had damaged its reputation.

At a subsequent disciplinary hearing, which Ms De Groen did not attend as she had been signed off work with stress, she was dismissed.

Ms De Groen brought claims against her former employer for discrimination and harassment (although not, strangely, dismissal). The tribunal found that the nursery directly discriminated against her on grounds of religion, in a number of respects. Calling her to an impromptu meeting was based on her lack of belief in the Jewish law forbidding cohabitation. This led to the way she was treated in the meeting, and the subsequent commencement of disciplinary proceedings. These allegations also amounted to sex discrimination, as both the nursery manager and the Managing Director admitted that they would not have had such a conversation with a man – and if they had, they would have expected him to have walked out of the meeting fairly quickly.

The tribunal also found that the nursery had indirectly discriminated against Ms De Groen in requiring her to make dishonest statements about her private life, in order to remain employed. This requirement clearly could not be justified, as it required her to breach one tenet of the Jewish orthodoxy (not to lie) in order to cover up a breach of another tenet (not to cohabit). Besides, lying in such circumstances was, the tribunal found, repugnant under the general standards of morality. Finally, the tribunal also found that the nursery staffs’ behaviour at the meetings with Ms De Groen, and thereafter in the disciplinary process, also amounted to harassment, as it was plainly unwanted conduct related to her religious beliefs and her gender, which was humiliating and offensive towards her. Compensation due to her will be determined at a future hearing.

In this case, there was no contractual requirement on Ms De Groen to follow the ultra-orthodox version of the Jewish faith or to adhere to its tenets, during her employment. Nor was adherence to particular beliefs so intertwined with her job role that it could be said that they were a requirement, such that they might justify her treatment in the absence of any contractual obligation. In this case, the nursery appears to have acted based on the complaints of a small number of parents (and their own views) on the acceptability of Ms De Groen’s lifestyle choices. However, employers need to tread carefully in this area in order to ensure they do not fall foul of the law.

Safia Tharoo, Barrister, 42 Bedford Row, London

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