Aside from being the scourge of every New Year’s diet, the toothsome treaty stuff has now caused a real problem with the laws prohibiting discrimination in employment. It seems surprising – after all, pretty much everyone likes cake. So what’s the issue? Read on…
Last summer saw the widely reporting Supreme Court decision in the ‘gay cake case’ of Lee v Asher’s Bakery. The issue was whether a Belfast bakery could refuse an order to produce a cake with a message supporting gay marriage (not recognised by the law in Northern Ireland). The NI Court of Appeal had decided in favour of frustrated cake-purchaser Mr Lee, but to the surprise of many commentators (including ourselves, as shown in this (sadly cake-free) pre-decision Mitchell Law Tea Break) the Supreme Court found in favour of the bakery. In summary, they found that it was not discriminatory for the Christian bakers to refuse to provide a cake endorsing a message that they were personally opposed to.
One might imagine this is quite a niche decision, likely to affect only purveyors of certain services – cake decorators, signage writers and parts of the wedding industry. However, the reasoning behind the Supreme Court’s decision (and the fact it is a decision from the highest legal authority in the land) means that we can expect it to have a strong bearing on how employment law cases are decided. And we’ve just seen the first major example in the EAT decision of Gan Menacham Hendon Ltd v De Groen.
Gan Menacham Hendon is a nursery, run by an orthodox Jewish couple, affiliated to the Chabad Lubavitch Hasidic movement within orthodox Judaism. Ms De Groen, herself Jewish, was employed as a member of teaching staff. It came to light that Ms De Groen was co-habiting with a man, which the nursery owners considered offended against their principles and might cause reputational damage to the business amongst parents and prospective parents. The problem was raised with Ms De Groen, and a solution suggested whereby she falsely tell the owners that she had stopped co-habiting, in order that they could truthfully tell parents that they had been informed that that was the case. Ms De Groen declined this opportunity and was eventually dismissed on the basis of SOSR, as recommended by an HR consultant engaged by the employer.
The ET held that the Claimant had suffered both direct and indirect discrimination on grounds of religion/belief and direct discrimination and harassment on grounds of sex. Key to this was a factual finding that the actual ‘reputational damage’ was minimal, and that the fundamental reason for the dismissal had been the proprietor’s own views of co-habitation.
The EAT, in contrast, allowed the nursery’s appeal in respect of both direct and indirect discrimination on grounds of religion and belief. Relying on the Asher’s Bakery case they held that there was no unlawful treatment where a Claimant had been treated in a particular way because of the employer’s belief, rather than because of her own belief. In relation to indirect discrimination, it was held that this was an ad hoc situation and no ‘principle, criterion or practice’ applying across the board could therefore be identified. The appeal was upheld in relation to the sex discrimination parts of the claim. Nonetheless, if this is a correct interpretation of Asher’s it represents a sweeping reduction in the protection offered against discrimination on grounds of religion or belief.
What if a white supremacist employer refuses to employ anyone who doesn’t match their own racial profile?
What if an Islamist employer segregates the women in its workforce?
What if a national pub chain requires staff to distribute propaganda supporting Brexit?
It is easy to think of circumstances where an employee might be subjected to detriment as a result of the employer’s beliefs rather than their own. In some cases, other protections, for example around sex discrimination or sexual orientation discrimination, may enable employees to build a case. But that’s unsatisfactory at best and, at worst, brings the law into disrepute. If we have a law prohibiting discrimination on the grounds of religion and belief, then that law ought to be effective in protecting a nursery worker who is sacked because her employer’s religion dictates disapproval of her cohabitation, where everyone accepts that the cohabitation itself had no effect on her work.
The De Groen case is a retrograde step in a world where we are increasingly reminded that we shouldn’t take hard-won freedoms for granted. Sadly, I predict there will be many more like it in coming years. At least we can always rely on cake to sustain us.