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1/ [Thread] Gan Menachem v de Groen may be principally concerned with whether it's directly discriminatory because of religion/sex for a Lubavitch (i.e. ultra-Orthodox/mega-frum) nursery to dismiss someone for living in sin, but the judgment is surprisingly important. #ukemplaw
2/ 1st some facts. C was a nursery teacher at GM. C is Jewish but is less frum (i.e. less religious) than the nursery's identity and clientele. Significantly, C and her unmarried partner lived together - something that would be seen as scandalous to the Lubavitch community.
3/ C attended a communal bonfire/BBQ on Lag B'Omer (the 33rd day after the 1st day of Pesach). She went with her partner, who let slip to a nursery governor that he & C lived together. Some parents found out, recoiled in horror & threatened to withdraw their children.
4/ GM's head & MD called C into a meeting. They had a cunning plan. They didn't care about what C did in private - it was no business of theirs - but could she please tell them that she no longer lived with her partner (whether true or not) so they could tell the parents.
5/ They also lectured C about the wrongs of living in sin & of pregnancy outside marriage (C wasn't pregnant), & expressed worry that aged 23 C was leaving it a bit late to marry & have kids. If she had a problem with marriage, they helpfully suggested counselling.
6/ C took umbrage & wrote to demand an apology & an end to this harassment. The nursery decided if C wouldn't lie a better approach was a disciplinary process and ultimately C's dismissal - the nursery could be in danger otherwise.
7/ C unsurprisingly brought a claim which included direct & indirect discrim on grounds of sex and religion, as well as harassment. C succeeded in a variety of ways in respect of a variety of detriments. GM then appealed.
8/ The principal ground of appeal dealt with by the EAT concerned whether there could be direct discrimination when the employer & employee were of the same religion & where, in any event, the employer was just enforcing its own religious beliefs.
9/The Supreme Court judgment in Lee v Ashers (which postdated the ET) was central. The EAT held that the ET had found GM's treatment of C was because of GM's own religious beliefs rather than C's. It was clear from the 'gay cake' case that wasn't enough for direct discrimination. 
10/ The EAT found that as a result, the employer would have treated anyone in C's personal situation the same way, regardless of their personal characteristics. Hence there could be no finding of less favourable treatment than a comparator.
11/The ET hadn't made findings it was C being both Jewish & living in sin that affected her treatment. That may well be a fault of cross-examination. It's conceivable C being Jewish & in her situation was what raised hackles & the parents wouldn't have worried if C wasn't Jewish.
12/ Swift J considered such a factual conclusion implausible, but that is perhaps naive. It's conceivable those involved would hold Jewish staff to a higher moral standard than non-Jewish staff, even if solely because only the Jewish staff are expected to abide by the Torah.
13/ Given that the EAT confirmed in a long section of the judgment that there can be direct discrimination by 1 Jew against another (hardly a surprise after the JFS case, although it isn't cited by the EAT), it would have been discriminatory to demand only a Jew living in sin lie
14/ Whilst allowing the appeal against the finding of direct discrimination because of religion, the EAT had no trouble upholding the ET on sex discrimination. That's unsurprising given the talk of pregnancy & being on the shelf at 23.
15/ The EAT's decision on indirect discrim is of interest. The ET found indirect discrimination concerning a PCP of being prepared to make a dishonest statement about their relationship/private life in order to remain employed.
16/ The EAT was concerned about was whether that was a PCP at all. The EAT considered what Nottingham City Transport v Harvey & Pendleton v Derbyshire CC have to say about the line between a practice & a simple one-off response to events.
17/ Harvey is clear that a practice has to have some sense of repetition about it. Pendleton makes clear that that doesn't mean there can't be indirect discrim from the 1st application of a practice. The key is to lead evidence from which a practice can be inferred.
18/ Here there was none, & the EAT considered that the evidence pointed to this being on-the-hoof decision making - a Baldrickian cunning plan that was conjured in the moment.
19/ The EAT was critical of the ET's lack of consideration of comparative disadvantage. Given the way the PCP was framed, it couldn't see how that could be made out. There wasn't a disadvantage against others required to lie about religious beliefs to remain employed.
20/ The final part of Swift J's judgment will be familiar to all #ukemplaw practitioners. Noting the 'air of unreality' about the indirect claim, he urged note to be taken that claims are not necessarily improved by pleading them in every statutory way possible.
