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In the case of Ms Z De Groen v Gan Menachem Hendon Limited: 3347281/2016 the Employment Tribunal held that Ms de Groen had been subjected to sex discrimination and religious belief discrimination by her employer, an ultra-Orthodox Jewish nursery.

The facts in De Groen v Gan Menachem Hendon Limited

Ms de Groen commenced employment at Gan Menachem Hendon Limited (“Gan Menachem”) as a teacher on 1 September 2012. Gan Menachem is an Orthodox Jewish nursery school; many Orthodox Jews regard co-habitation before marriage as contrary to their faith.

During her employment Ms de Groen was co-habiting with a man (who she eventually married). She was raised as an ultra-Orthodox Jew (and so was conversant with its beliefs and practices) but at the time she joined the school she did not regard herself as ultra-Orthodox, although she was a practicing Jew; some ultra-Orthodox Jews view a fundamental tenet of ultra-Orthodoxy being that non-married couples should not co-habit (others, however, do not believe that). Ms de Groen, for her part, did not see the prohibition of non-marriage co-habitation as a fundamental tenent of ultra-Orthodoxy.

When Ms de Groen joined the school Mrs Lieberman (Nursery Manager) and Mrs Toron (Managing Director) had the understanding that she would gradually return to the practices of ultra-Orthodoxy. Ms de Groen was, however, uncertain about her religious beliefs and perceived ultra-Orthodoxy as a belief system that had been forced upon her, which led her to question aspects of it.

In or about January 2016 Ms de Groen met the man that she was ultimately to marry (in July 2017). Some time prior to 26 May 2016 they began living together. She was aware that when she started to co-habit with her partner some members of the ultra-Orthodox community might view this as being contrary to their fundamental beliefs.

On 26 May 2016 Ms de Groen attended a barbeque with her boyfriend, with whom she was living in Pimlico. The barbeque was held to celebrate a Jewish holy day and some trustees of the nursery (including a Mr Freundlich) and parents of students were present. The barbeque was, however, independent of the nursery. During the course of the day Ms de Groen introduced her boyfriend to Mr Freundlich; her boyfriend informed Mr Freundlich, upon being asked, that he lived with Ms de Groen in Pimlico.

At some point after 26 May 2016 Ms Toron was told that Ms de Groen was living with her boyfriend. On 27 June 2016 Ms de Groen was asked to attend a meeting with Mrs Toron and Mrs Lieberman. She did so. In this meeting the subject of Ms de Groen living with her boyfriend was discussed, although Mrs Toron and Mrs Lieberman had no idea how this would be addressed or dealt with. As a result the discussion moved to being an unfocussed discussion of Ms de Groen’s private life, with the main themes being that living with a man whom you were not married to was wrong, having children out of wedlock was wrong, that she was 23 and time was passing for her to have children, and that if she had a problem with the idea of marriage then she should seek counselling. It was suggested to Ms de Groen in this meeting that one of the ways of dealing with the problem might be that Ms de Groen told people that she was not living with her boyfriend (that she should effectively lie). Ms de Groen was left in at tearful and distressed state by the meeting.

On 29 June 2016 Ms de Groen met with Mrs Toron and Mrs Lieberman again. Ms de Groen told them that she wanted a written apology and a promise that she would never be harassed in that way again. She referred to the possibility of an Employment Tribunal claim if matters could not be resolved by way of an apology.  The two ladies did not apologise and instead they told her that they should not have been so nice to her; they threatened her with disciplinary proceedings.

On 30 June 2016 a letter was sent by DAS (the school’s HR advisers) to Ms de Groen. This letter commenced disciplinary proceedings, alleging that she had undertaken “an act of SOSR (some other substantial reason)”. The particulars of the allegations were that she had contravened the nursery’s ethos and religious beliefs, and that she had damaged the nursery’s reputation. It was alleged that the school had tried to resolve the matter informally, that she had never been asked about her private life, and that in alleging that this had been done she was manipulating the facts. The letter also alleged that she had closed off any avenue of informal resolution. In fact she had been asked about these matters and the school was responsible for closing off the avenue of informal resolution. She was invited to a disciplinary hearing to take place on 5 July 2016.

The meeting was postponed due to Ms de Groen’s absence, and a disciplinary hearing took place in her absence on 26 July 2016. This disciplinary hearing consisted of DAS sending a written report to the school recommending that she be dismissed – this report also contained significant factual inaccuracies (for example that Mrs Toron and Mrs Lieberman had not asked about Ms de Groen’s private life, and that Ms de Groen was truing to manipulate a case against her employer). Mrs Toron adopted the conclusions of the report and dismissed Ms de Groen summarily on 27 July 2016.

Ms de Groen subsequently pursued claims against Gan Menachem for direct sex discrimination, direct religious belief discrimination, indirect religious belief discrimination, sex-related harassment, and religious belief-related harassment.

The decision of the Employment Tribunal in De Groen v Gan Menachem Hendon Limited

The Employment Tribunal upheld Ms de Groen’s claims for for direct sex discrimination, direct religious belief discrimination, indirect religious belief discrimination, sex-related harassment, and religious belief-related harassment.

Direct religious belief discrimination

The Tribunal found that there were facts from which it could infer that discrimination had taken place, including the failure to call evidence from Mr Freundlich, the failure to evidence exactly what complaints were made about parents regarding the cohabitation, and the lack of any clear plan as to how to conduct the 27 June 2016 meeting (including Mrs Toron and Mrs Lieberman referring to their religious beliefs in that meeting and pressing her on her plans regarding cohabitation and marriage).

The Employment Tribunal further held that Ms de Groen had been subjected to the following detriments because of her religious beliefs: 1) not giving her notice of the meeting on 27 June 2016; 2) the conduct of the meeting on 27 June 2016; 3) the content of the meeting on 29 June 2016; 4) the commencing of the disciplinary proceedings; 5) her dismissal; and 6) the criticisms of her and the dismissal letter which had adopted the DAS summary.

Indirect religious belief discrimination

The Tribunal upheld her claim for indirect religious belief discrimination, holding that the school had applied to Ms de Groen a requirement that she be prepared to make a dishonest statement about her relationship and/or private life in order to remain employed, and that this caused her a particular disadvantage (as per the direct discrimination claim). The Tribunal further held that the discriminatory conduct could not be objectively justified.

Direct sex discrimination

The Tribunal found that there were facts from which it could infer that discrimination had taken place, including the way that she had been treated on 27 June 2016 and that many of the comments made at this meeting specifically related to women (including pregnancy outside of marriage, questioning her about her age, and intentions as to childbirth).

The Employment Tribunal further held that Ms de Groen had been subjected to the following detriments because of her sex: 1) not giving her notice of the meeting on 27 June 2016; 2) the conduct of the meeting on 27 June 2016; 3) the content of the meeting on 29 June 2016; 4) the commencing of the disciplinary proceedings; 5) her dismissal; and 6) the criticisms of her and the dismissal letter which had adopted the DAS summary.

Harassment

The Employment Tribunal held that the conduct of the meetings on 27 and 29 June 2016 amounted to sex-related harassment and religious belief-related harassment.

Our solicitors’ view on De Groen v Gan Menachem Hendon Limited

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must take great care to ensure that they do not impose discriminatory practices in the workplace otherwise, as in this case, they may face time-consuming, embarrassing, and costly Employment Tribunal claims.”

The judgment of the Employment Tribunal can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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