Legal lowdown: Religious employers and employees' private lives
Luke Green, November 02, 2017
A recent case raises important issues about the overlap between an employee’s private and professional life
A case currently proceeding before Watford Employment Tribunal raises questions about the extent to which an employer can control an employee’s private life. Zelda de Groen, 24, claims she was dismissed from her job as a nursery nurse because her employer, Gan Menachem Nursery, were unhappy that she was cohabiting with her boyfriend before marriage.
De Groen claims that her “living in sin” was unacceptable to her orthodox Jewish employers. The case raises important issues about the overlap between an employee’s private and professional life, and the extent to which employers with a religious ethos can restrict an employee’s private activities.
The Equality Act 2010 protects employees and others such as job candidates from discrimination because of religion or certain philosophical beliefs (including the lack of such a religion or belief). It would be easy to assume from this that, provided De Groen’s version of events is accepted, her dismissal amounts to unlawful religious discrimination. But the nursery may argue that its decision to dismiss De Groen fell within an exception built into the legislation. These exceptions, known as occupational requirements, include:
- Nature of the job – an employer may, in strictly limited circumstances, stipulate that, because of the nature of the job in question, only people of a particular religion or belief can do the job.
- Religious ethos – an employer with an ethos based on religion or belief can stipulate that, having regard to the nature or context of the work, being of a specified religion or belief is a requirement of the particular job.
However it will be for the tribunal to decide if the nursery did have a valid occupational requirement exception. These exceptions have been very narrowly applied by tribunals in the past. In particular it must be proportionate, when considering the nature of the job and the context within which it is carried out, to limit the job in question to those holding a specified religion or belief. This means the employer cannot usually restrict all jobs to those of a specified faith. For example it might be OK to say that the head of the organisation holds the required faith, but not that every member of staff does so.
The case also raises interesting questions about the difference between holding a particular faith and complying with the teachings of that faith. It seems from press reports that De Groen has an orthodox Charedi Jewish background, and that perhaps the issue is not so much whether she is Jewish, but rather whether her lifestyle choices reflected the accepted requirements of orthodox Judaism.
Just how far can an employer go to stipulate that not only must staff hold a particular faith, but they must also comply with its teachings? The tribunal is likely to have to consider these issues when it determines De Groen’s discrimination claims later this month.
Luke Green is partner and head of schools at Hill Dickinson