Nursery that sacked teacher for living with boyfriend wins appeal against religious discrimination

But judge rules employee was victim of sex discrimination following meetings held to discuss the teacher’s marital status

An Orthodox Jewish nursery in London that sacked a teacher after it learned she was living with her boyfriend has won its appeal against religious discrimination. 

The Employment Appeal Tribunal (EAT) reversed a previous ruling that the dismissal of Zelda De Groen was discriminatory because it was unfair of the nursery to expect everyone of its religion to follow orthodox practice. 

The EAT ruled that while an employer was not allowed to act disfavourably to an employee based on that individual’s religious belief, it was permitted to do so based on its own belief so long as it acted consistently. This was precedented by last year’s high-profile case in which the Supreme Court ruled a bakery was allowed to refuse putting a pro-gay marriage slogan on a cake because it was not discriminating against an individual.

The EAT ruled the nursery would have dismissed anyone cohabiting outside of marriage regardless of their religion.

However, the EAT did uphold the previous tribunal’s decision that De Groen had been the victim of sex discrimination and harassment by the nursery.

De Groen was employed by the Gan Menachem Hendon nursery from July 2012 until her dismissal on 26 July 2016. Gan Menachem is a Jewish nursery affiliated to the Chabad Lubavitch Hasidic movement, which the tribunal was told is run in accordance with “ultra-orthodox” principles.

It came to the nursery’s attention that De Groen was living with her boyfriend after the couple attended a barbecue organised by a synagogue affiliated with the nursery in May 2016. One of the nursery directors and the parents of some children attending the nursery were present at the function, and De Groen’s boyfriend had mentioned their cohabitation in conversation.

The tribunal heard no particular attention seemed to have been paid to the remarks at the time, but they led to a meeting between De Groen, the nursery’s headteacher Miriam Lieberman and its managing director Dina Toron on 27 June 2016. 

In the meeting, De Groen was told her private life was of no concern to the nursery, but was asked to confirm she was no longer living with her boyfriend so they could tell concerned parties. The tribunal found Lieberman and Toron had wanted De Groen to lie and tell them that she did not live with her boyfriend, however De Groen did not do so.

Both Lieberman and Toron also expressed the view that cohabitation outside marriage was wrong, that having children outside marriage was wrong, and that at 23 years old “time was passing” for De Groen to have children. They added that if De Groen had problems with the idea of marriage, she should seek counselling.

De Groen was dismissed with immediate effect in a letter dated 27 July 2016. In the letter, the nursery alleged De Groen had presented herself in “such a way as to prove you have acted or are acting in contravention of the nursery’s culture, ethos and religious beliefs”, and that parental complaints about these actions had damaged the nursery’s reputation.

The Watford employment tribunal ruled De Groen was discriminated against by the nursery by reason of her sex and religion or beliefs. The tribunal also found she had been harassed by her former employer. The nursery appealed.

Judge Swift, who heard the EAT case, said the initial tribunal’s findings of religious discrimination had been incorrect, citing Lee v Ashers Baking Company Ltd, in which the Supreme Court ruled the baker was not discriminating against an individual’s personal characteristics when it refused to ice a pro-gay marriage slogan on a cake because it would have refused to display the same slogan whatever the sexuality of the customers.

Swift said: “I cannot see how it could have been open to the tribunal properly to conclude that the provision, criterion or practice it had identified would give rise to any particular comparative disadvantage for Ms De Groen and other Jews who shared her belief that cohabitation outside marriage was not contrary to their faith.”

But he dismissed the appeal against discrimination and harassment on the grounds of her sex, ruling Toron and Lieberman had intended to discuss the possibility of marriage and pregnancy when they met with De Groen. 

Andrew Willis, head of legal at HR-inform, said the successful finding of sex discrimination showed the importance of focusing workplace communication and actions on work-related matters.

“Previous cases have shown that employers can take action against their employees for the way in which they manifest their religious beliefs, if these are against company rules, however drawing this line is difficult,” Willis added. 

The consideration of remedy on the claims of sexual discrimination and harassment has been remitted to the Watford tribunal. De Groen and Gan Menachem Hendon have been contacted for comment.