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Conflicts of Discrimination

The most recent in a string of legal rulings has been criticised by HR commentators and Christian protagonists as championing the legal protections available to homosexuals above those of religious groups.  Both sexual orientation and religion are defined as “protected characteristics” under the Equality Act 2010, although protections from discrimination for these reasons were already protected under previous legislation.  The difficulty is that it is not clear to employers which area of protection might be deserving of more protection than another or in what circumstances it might be legitimate to give one area preference.

The first of these claims involved a civil registrar (Mrs Ladele) who refused to perform civil partnership ceremonies for same sex couples.  She maintained that this conflicted starkly with her Christian beliefs and that, consequently, she had been discriminated against in being ordered to do so.  In December 2009, the Court of Appeal disagreed and rejected her claims.

The next involved a Mr McFarlane, a Christian and former elder of a large multicultural church in Bristol.  He was employed by Relate Avon Limited in May 2003 as a “marital and couples counsellor”.  He believed that homosexual activity was sinful and considered that he should not be required to do anything endorsing this.  Inevitably, when required to treat homosexuals, this led him into intractable conflict with his religious beliefs and he protested at the requirement of Relate to confirm his willingness to do so.  He was ultimately dismissed for his refusal.

Mr McFarlane brought employment tribunal claims asserting that he had been unfairly dismissed and discriminated against as a result of his religious beliefs.  He complained both that his dismissal was an act of “direct” discrimination against him and that the requirement of Relate that employees must conform to its policies in treating couples irrespective of their sexual preferences, “indirectly” discriminated against Christians generally.  The employment tribunal rejected his claims, considering that Mr McFarlane had been dismissed for his refusal to confirm his adherence to Relate’s policies, not because of his Christianity and that all employees were required to do so irrespective of their religious beliefs.  Furthermore, the tribunal held Relate’s requirement for this was a “proportionate means of achieving a legitimate aim” being the ensurance that its services would be available to all regardless of their sexual persuasions.  The Employment Appeal Tribunal and, in May last year, the Court of Appeal agreed.

The rationale of this Judgment was curious to some.  The EAT in its judgment found  “the fact the employee’s motivation for the conduct in question may be found in his wish to manifest his religious belief does not mean that that belief is the ground for the employer’s action”.  In other words, the EAT found a clear distinction could be drawn between one’s religion and the ‘manifestation’ of the beliefs one is required to observe as part of those.  The Court of Appeal agreed, considering there’s a difference between the protection afforded to the right to hold and express a belief and the protection of it’s substance or content (neither of the latter are entitled to any).  

On one view, that reasoning could be considered tenuous.  Can it reasonably be said that one is entitled to observe their religious obligations without fear of discrimination, whilst on the other hand that same person must also tolerate the starkly conflicting sexual orientations of others?  Can you hold and express a belief without protecting it’s substance or content?  At present, at least, the Court of Appeal has answered both questions affirmatively.  Those cases led to scathing criticisms from religious groups in that they, on one view, prioritised protections for homosexuals over those for particular faiths.

The furore arose again in a recent case which has fanned the flames of this dispute, giving new impetus to critics on either side.  This involved a Mr and Mrs Bull, the owners of a Cornish B&B.  In January, they were ordered by Bristol County Court to pay £3600 compensation to civil partners Steven Preddy and Martin Hall.  The Bulls accepted the booking of Messrs Preddy & Hall for a double room but later reneged upon this upon discovering they were not ‘married’.  Although they would have let a single or twin bed room none were available.  They argued that they applied the same criteria to unmarried, heterosexual couples and that sexual preferences were irrelevant to them.  Indeed, this was accepted by the Court.  The Court held, however, that no significant difference can be drawn in these modern times between ‘marriage’ and ‘civil partnership’ status.  

The Bulls were held to have discriminated against Messrs Preddy & Hall because of their sexual orientation.  The Court said:

“It is inevitable that such laws will from time to time cut across deeply held beliefs of individuals and sections of society for they reflect the social attitudes and morals prevailing at the time that they made”.

What the Court failed to address, however, was that the protections against discrimination in the fields of religion and sexual orientation were introduced within weeks of each other in late 2002/early 2003.  The claim was supported by the Equalities and Human Rights Commission (EHRC) whilst Mr & Mrs Bull were supported by the Christian Institute.  Leave to appeal was granted, so this case may well raise eyebrows again.

These Judgments have had (and will continue to have) significant impacts for UK employers who are required to operate non-discriminatory equal opportunities practices.  There remains a ‘grey area’ in the discrimination field in terms of what, exactly, an employer is to do when faced with two conflicting points of view – both of which are currently afforded equal protection under the Equality Act 2010.  Lambasted by those opponents of the Judgments, in the main religious proponents, one might sympathise with that view whilst also acknowledging that the current position is also at least ‘reasonable’.  

So where does that leave the thankless task of an employer, such as in those who employed Ms Ladele and Mr McFarlane, faced with the task resolving the conflict between two areas of discrimination law, each worthy of an equal standard protection?  God only knows….the tenor of these cases appear to suggest that the religions of particular employees may be legitimately offended where the requirements of that religion conflict with legal protections against discrimination based on one’s sexuality.

For further information please contact John Lee on 0131 226 8216 or email john.lee@mbmcommercial.co.uk

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