Two recent cases have clarified the legal situation with regard to employees who claim discrimination contrary to the Employment Equality (Religion or Belief) Regulations 2003 (the Regulations) after being disciplined for refusing to provide services to same-sex couples.
In McFarlane v Relate Avon Ltd., Gary McFarlane had failed to give his employer an unequivocal assurance that he would agree to carry out relationship work involving same-sex sexual issues, in compliance with Relate’s Equal Opportunities policy and Professional Ethics policy. Mr McFarlane is a Christian and holds the belief that same-sex sexual activity is against the Bible’s teachings and he should therefore do nothing to endorse such activity. He wished to undertake a diploma course in psycho-sexual therapy, which is very different from the couples counselling work he was doing, and raised the possibility of being exempted from any obligation to work with same-sex couples where sexual issues were involved. This was unacceptable to Relate and, because of doubts as to whether he could be trusted to comply with its policies, Mr McFarlane was dismissed.
Mr McFarlane brought claims against his employer for, amongst other things, direct and indirect discrimination under the Regulations. The Employment Tribunal (ET) dismissed these claims and he appealed to the Employment Appeal Tribunal (EAT).
The EAT upheld the ET’s finding that Mr McFarlane had not been the victim of direct discrimination. The ET had been satisfied that any other counsellor who voiced similar concerns for reasons unrelated to their religion, thereby leaving Relate in doubt as to their commitment to its core values, would have been treated in the same way. In the EAT’s view, the fact that the motivation for Mr McFarlane’s conduct may have been his wish to manifest his religious belief did not mean that his belief was the reason for his employer’s action.
With regard to indirect discrimination, it was common ground that Relate required its counsellors to make their services available to couples without differentiation with regard to sexuality. Whilst this constituted a ‘provision, criterion or practice’, within the meaning of the Regulations, which did put persons with the same religious beliefs as Mr McFarlane at a particular disadvantage, the EAT upheld the ET’s decision that as he had failed to confirm that he would provide the full range of services to all clients, Relate’s dismissal of Mr McFarlane was a proportionate means of achieving its legitimate aim of providing non-discriminatory services.
Shortly after this ruling, the Court of Appeal dismissed the appeal of a Christian registrar who refused to perform civil partnership ceremonies (Ladele v London Borough of Islington). The judge found that Ms Ladele’s employer had little choice but to insist that she perform civil partnership ceremonies. Under the Equality Act (Sexual Orientation) Regulations 2007, it is against the law to discriminate against someone by refusing to provide goods, facilities or services on the ground of their sexual orientation.
The Court of Appeal subsequently refused Mr McFarlane permission to appeal against the EAT’s decision in his case. The Court referred to the ‘twin conditions of a free society’, namely that whilst the law must protect an individual’s right to hold and express a religious belief, it should not offer any protection whatsoever of the substance or content of those beliefs simply because they are based on religious precepts.