Is it unfair to dismiss an employee who just doesn’t 'fit in'?

  • Insight

08 May 2019

In the recent case of Gan Menachem v de Groen, the Employment Appeal Tribunal (EAT) looked at whether dismissing a teacher who was living with her boyfriend, contrary to the employer’s orthodox Jewish beliefs, was discrimination in the workplace on the grounds of religion or belief. Did the employee have a case for unfair dismissal here?

Generally speaking, employees have the right to hold religious beliefs and not to be treated less favourably for doing so. This case is interesting because it was the individual’s failure to adhere to the employer’s beliefs which was the problem.   

What happened in this case?

The employee was a teacher at a strictly-orthodox Jewish nursery. A synagogue affiliated with the nursery organised a barbeque, which the employee attended with her boyfriend. The barbeque was also attended by parents of some of the children and by one of the Directors of the nursery. During a conversation with the nursery Director, the employee’s boyfriend revealed that they lived together. Couples living together prior to marriage contravenes orthodox Jewish beliefs. 

Soon after the barbeque, the employee was invited to a meeting with the nursery’s Head Teacher and Managing Director. They explained that whilst the employee’s personal life was not the concern of the nursery, there was a risk of reputational damage to the nursery if parents discovered that she was living with her boyfriend. They advised the employee that one solution was for her to tell them that she no longer lived with her boyfriend, so that they could inform the parents that this was what she had told them.

The employee refused to lie and, following the meeting, she was dismissed by the nursery.  The dismissal letter stated that co-habitating with her boyfriend contravened the nursery’s culture, ethos and religious beliefs and had the potential to cause reputational damage to the nursery. The employee brought discrimination claims challenging the dismissal.The decision by the Employment Tribunal can be found here.

What was decided at the Employment Appeal Tribunal?

In relation to the religious discrimination claim, the EAT found that the employer had acted because of its own beliefs, and the employee’s non-compliance with those beliefs. The employer did not act because of the employee’s beliefs. So the nursery had not treated the employee less favourably because of her beliefs.

As a result, there was no direct discrimination on the grounds of religion and belief.

What can employers learn from this?

This case seems to give employers more scope to dismiss those who ‘don’t fit in’. But, there are other avenues of complaint open to employees – including claims relating to a breach of the individual’s right to a private life. In this particular case, there was a sex discrimination claim that was successful despite the claim on the grounds of religion or belief being unsuccessful.

Anderson Strathern has a team of specialists in Employment Law.  We handle all aspects of Employment Law matters for employers and employees, including: