Regular readers of this column may recall that in December 2017, I wrote about the decision of an employment tribunal who found that a nursery teacher had been discriminated against on grounds of sex and religion by her employer, an ultra-orthodox Jewish nursery.

Ms De Groen had grown up in an orthodox household, but she did not rigorously observe the practices of an ultra-orthodox Jew. She began cohabiting with a man who later became her husband – this fact became known to the parents of some of the children who attended the nursery, who expressed concern about the issue; some threatened to remove their children as a result.

As a result, Ms De Groen was called into an impromptu meeting with the nursery manager and the Managing Director in which it was suggested 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. It was 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 on grounds of sex and religion and belief. She succeeded in respect of both grounds. The nursery appealed those findings (UKEAT/0059/18/OO).

The Employment Appeal Tribunal (EAT) upheld the finding that Ms De Groen had been directly discriminated against on grounds of sex – the comments at the meeting were clearly related to the fact that she was female. However, the EAT decided that the finding of direct discrimination on grounds of religion or belief could not be supported. It was clear that the tribunal had found in Ms De Groen’s favour because of the fact that it was clear the nursery staff were relying on their own religious beliefs, in treating her less favourably.

Regular readers may recall the Supreme Court decision in Lee v Ashers Bakery (which I wrote about in October 2018) which is often referred to as the ‘Gay Cake’ case. The decision, in that case, was based on the fact that discrimination cannot take place on the grounds of the alleged discriminator’s religion or belief, but must relate to the religion or belief of the complainant.

Applying that principle here, the EAT decided that because the tribunal had found that the nursery staff’s actions were motivated by their own religion or belief, that an allegation of discrimination could not succeed. The finding of discrimination on grounds of religion was therefore overturned.

This is the first time that the principle in Lee v Ashers Bakery has been applied in another case. The outcome is interesting, because it is very possible that the way Ms De Groen was treated was due to her own religious beliefs, in that she might not have been held to such a high standard had she not profess to be Jewish, and the parents of the nursery children might not have taken such offence had her living arrangements. However, this does not appear to have been part of her claim.

This case is, therefore, a reminder to employers and employees that it is the particular protected characteristic of the complainant that is significant – however, as I have said before, the line between the complainant and the alleged aggressor is often blurred, and careful thought needs to be given to situations in which such issues arise to ensure that an individual is not discriminated against on the basis of any of the protected characteristics included within the Equality Act 2010.