De Groen v Gan Menaschem Hendon: Dismissal from Religious Schools
To what extent can an ultra-Orthodox Jewish school go to protect its belief system and values? This was the subject of a fascinating employment tribunal sitting in Watford which gave judgment last month. In De Groen v Gan Menaschem Hendon Ltd the claimant taught at a private nursery school as a team leader. The nursery is associated with the Lubavich community but not part of the Lubavich schools network. Ms De Groen renounced her ultra-Orthodox beliefs and the tribunal state that she “perceived ultra orthodoxy as a belief system which had been forced upon her in the past by family and school which led her to question aspects of it”. She cohabited with a man which was anathema to the orthodoxy which the school represented. She made no secret of this fact and the denouement of a clear revelation of her cohabitation took place at a barbecue which was held by the School to celebrate the Jewish festival of Lag B’Omer. There was some indication that parents of children at the school would take their children away if they heard about the Claimant’s co habitation but the evidence for this was vague and did not satisfy the tribunal.
Following the barbecue Ms De Groen was required to attend a meeting with the senior management of the nursery to explain herself. They spoke in vague terms about changing her duties but there were no concrete proposals ever put to her. It was, the employment tribunal found, “an unfocussed discussion of the claimant’s private life”. This meeting left the claimant “profoundly upset”. Amongst other things, the managers told her that “she was 23 and time was passing for her to have children, that if the claimant had a problem with the idea of marriage she should seek counselling” (Para 40.3). They also used the meeting to explain that “one way out of the problem was for the claimant to tell people that she was not co habiting”.
The tribunal found that the two managers “behaved in this meeting…as a rather overbearing mother and elder sister. They were “dispensing wisdom (and some sympathy) as they saw it”.
The tribunal found that the claimant was “struggling to establish her own set of life values within the spectrum of liberal to ultra-orthodox Judaism” and that “information and concerns about individuals who manifested non conformism would spread quickly through the [ultra-orthodox] community”. It noted the “lack of a clear statement of requirements and expectations” on the teachers, although there was one on dress codes.
There is a limited protection from the rigours of the Equality Act 2010 for religions. The occupational requirement relating to religion or belief provides that there must however be an occupational requirement for it to be imposed and the application thereof must be a “proportionate means of achieving a legitimate aim”. This derives from the terms of the terms of the EU Equal Treatment Directive.
The exception mainly applies to ministers of religion rather than persons in other capacities (albeit operating in a religious environment) such as school teachers. The Tribunal decided that “The occupational requirement must be connected directly to the claimant’s work” (para 86.3.1) and went so far as to say that “Lifestyles and personal beliefs are almost always excluded from the scope of an occupational requirement”. This potentially has serious implications for Jewish and other religious schools.
All cases must of course be examined on their facts. The facts as found by the tribunal are stark (especially the suggestion by the School management that the teacher lie about her co-habitation). Another point working against the School was that the School had indicated that it would consider alternative duties for the teacher but did not follow this through. The School further could not demonstrate that the Claimant’s views posed a threat to the economic well-being of the School. In addition, the School had not set down a policy on conduct, although it had a clear dress code. There were procedural lapses by the School too.
The tribunal found that in these circumstances the occupational requirement provision could not justify the dismissal of the nursery school team leader. The School was liable for indirect religious discrimination, sex discrimination and harassment.
The case clearly has wide implications for the Orthodox community in that it cannot insist on teachers living the lifestyle it would want to instil in its children. The conclusion that a school like this could not “have a blanket policy” appears particularly problematic when the policy is seen to be an essential part of the lifestyle it seeks to promote.
The amount of compensation will be determined at a later stage. The decision is at employment tribunal level only (and thus not binding on another tribunal) and may go to appeal to the Employment Appeal Tribunal.