UK: Was Nursery Teacher's Dismissal For Co-Habiting Outside Marriage Discriminatory?

Last Updated: 8 March 2019
Article by Alacoque Marvin

EAT: teacher's dismissal could not be discriminatory on the basis of the employer's religion or belief but was discriminatory on the ground of sex

Religion or belief discrimination

Direct discrimination can occur when someone is treated less favourably because of religion or belief. A lack of religion or belief is also a protected characteristic. The religion or beliefs of the alleged discriminator are not relevant. The key question is, was the belief or lack of belief of someone the other than discriminator a reason for the less favourable treatment?

This was one of the key points made by the Supreme Court in the recent case of Lee v Ashers Baking Co Ltd [2018] UKSC 49. In that case, a bakery's refusal to prepare a cake with the slogan "support gay marriage" was held not to be discriminatory on the grounds of religious belief because the belief in question was that of the bakery and not the customer (or someone else).

Case details: Gan Menachem Hendon Ltd v De Groen

Ms de Groen was a teacher at an ultra-orthodox Jewish nursery. She attended a nursery social event with her boyfriend who mentioned to one of the directors of the nursery that they lived together. Following this, the headteacher and the managing director of the nursery met with Ms de Groen in the staffroom without giving notice of the meeting. Ms de Groen was asked to confirm (even if it was not true) that she did not live with her boyfriend so that they could inform concerned parents that this was the case. The headteacher and managing director expressed their views at this meeting that co-habiting before marriage was wrong, that Ms de Groen should consider counselling if she had problems with the idea of marriage and that, at the age of 23, time was passing for her to have children.

Ms de Groen refused to lie about her private life and suggested that she could bring a claim because of the way she had been treated. There followed a disciplinary process which led to Ms de Groen's dismissal on the basis that she had contravened the culture, ethos and religious beliefs of the nursery and had damaged the nursery's reputation (risking financial loss to the nursery because of parental reaction).

Ms de Groen brought a number of claims, including direct discrimination, indirect discrimination and harassment on the grounds of both sex and religion or belief. An employment tribunal upheld all of her claims.

On appeal, the EAT disagreed with the tribunal's conclusions on religion or belief discrimination. In particular, it noted that the tribunal had determined that the nursery had discriminated against the claimant on the basis of its own religious beliefs. It had not made sufficient findings from which it could decide that the claimant had been less favourably treated because of a lack of religious belief.

The EAT made clear, following the Ashers Baking case, that the religious belief of the alleged discriminator cannot found a claim for religion or belief discrimination. It must be the religion, belief or lack of religion or belief of someone else which is the reason for the less favourable treatment.

The EAT agreed with the tribunal's finding that Ms de Groen had been directly discriminated against and harassed in relation to her sex.


This case is a useful reminder that a lack of belief is a protected characteristic under the Equality Act 2010. In this case, evidence in tribunal did not prove that the dismissal and other treatment was because of the claimant's lack of belief. The focus of the tribunal was, incorrectly, very much on the beliefs of the employer.

However, it is possible that similar circumstances could lead to a finding of religion or belief discrimination where the reason for the less favourable treatment or harassment was found on the evidence to be the claimant's lack of belief. The EAT confirmed that this could happen, for example, where the discriminator and claimant shared the same religion but differed in their particular beliefs. For example, as in this case, a disagreement about whether co-habiting outside marriage was against the tenets of the religion.

In some circumstances, employers can defend a direct discrimination claim by showing that it is an "occupational requirement" to have or not to have a particular protected characteristic. An employer with a religious ethos may be able to show that it is an occupational requirement for some employees to have a particular religious belief. This will only apply where there is a genuine reason why the employee must have the belief to fulfil the role. The occupational requirement must also be a proportionate means of achieving a legitimate aim. If there is a less discriminatory way of achieving the employer's aim, it will not be found to be proportionate.

The EAT agreed with the tribunal in this case that the dismissal was not the result of the application of an occupational requirement and that the nursery could not have defended the claim on this basis.

Employers should carefully consider whether a requirement to have a particular protected characteristic is a genuine requirement for the role. In the context of an educational institution with a religious ethos, there may be a genuine requirement for some roles, such as pastoral leadership roles, to be filled by people practising the faith, but this will not extend to all employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions