• Facts

    The facts of this case involve the dismissal of Ms De Groen who was a Jewish teacher at an ultra-orthodox Jewish nursery. A document set out the allegations against the Claimant as follows:

    “It is alleged that you attended a communal BBQ affiliated to the Nursery with your partner where you openly discussed the fact that you live together. Not only was the owner of the nursery present but parents of children in your care also heard this conversation. As you are aware the nursery and its ethos, together with the culture and values we promote are essential to the successful running of the business. Your disclosure has resulted in third party pressure from parents threatening financial hardship to the business.”

    Employment Tribunal

    Ms De Groen won her claims of discrimination on the grounds of religion or belief and sex before an employment tribunal. The tribunal accepted that the nursery had a religious ethos but rejected the contention that the dismissal had been the result of the application of an occupational requirement.


    The EAT dismissed the appeal against findings that the respondent had been subjected to direct sex discrimination and harassment and held that the tribunal’s findings of fact were a sufficient basis for its conclusions on such claims.

    The EAT allowed the Appellant’s appeal against the tribunal’s decision that there had been direct discrimination against the Respondent on the grounds of religion or belief and concluded that there was no sufficient evidential basis for the conclusion that the Appellant discriminated against the Respondent because of her religion or belief.

    The EAT also allowed an appeal against the Employment Tribunal’s conclusion that there had been indirect discrimination on grounds of religion or belief and concluded that there was no sufficient evidence to support the tribunal’s conclusion that the appellant had applied any provision criterion or practice to the Respondent.

    The EAT stated “The conclusion that Section 10(1) of the 2010 act prohibits less favourable treatment by an employer on the basis of its own religion or belief is wrong.

    By applying Lee v Ashers Baking where the Court of Appeal found that the Christian owners of a bakery had not discriminated by refusing to decorate a cake with the words ‘Support Gay Marriage’ the EAT held that the tribunal erred in finding that Ms De Groen had been less favourably treated by reason of the Nursery’s religious belief, rather than the Claimant’s and found that the Nursery had acted because of its own beliefs, and Ms De Groen’s non-compliance with those beliefs.

    The legislation

    Under the Equality Act 2010 (EA 2010), faith schools are permitted to take into account religious considerations in employment matters, relating to head-teachers and teachers, in accordance with the School Standards and Framework Act 1998.

    Section 124A of the School Standards and Framework Act 1998 states “Regard may be had, in connection with the termination of the employment or engagement of any teacher at the school, to any conduct on his part which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious discrimination”.

    Faith Schools should, however, be careful in applying this provision and dismissing employees because of conduct which is incompatible with a religion and should seek appropriate HR and legal advice before doing so.

    How can we help?

    Brachers is a leading provider of legal and HR advice to schools, academies and higher educational establishments. The Education team brings a fresh approach, collaborating a team of lawyers and HR consultants that advise on the issues faced by the sector in a straight forward jargon free, approachable manner.

    If you would like advice on any of the above or another matter affecting your establishment then please do not hesitate to contact a member of the team.

    This content is correct at time of publication

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