14 July 2008
Last week, a Christian registrar who was disciplined for refusing to conduct civil partnership ceremonies won her claims for discrimination and harassment on grounds of religion. For the majority of employers this particular scenario is unlikely to arise, but the underlying conflict could be found in any workplace. This begs the question; can you uphold one person’s rights at the expense of another’s and not be in the wrong?
Under the Employment Equality (Religion or Belief) Regulations 2003 employees are protected from discrimination, harassment and victimisation on grounds of religion. Equally, the Employment Equality (Sexual Orientation) Regulations 2003 afford the same protection to employees on the grounds of sexuality. Since, some religions hold homosexuality, or at least homosexual practices, to be sinful there is scope for potential conflict. This is exactly what happened in Ladele v London Borough of Islington but it is not the first time tribunals have had to consider the issue, nor will it be the last.
In Ladele, the registrar was unable to reconcile her duty to perform civil partnership ceremonies, creating a legally recognised union between two people of the same sex, with her orthodox Christian view that sexual relations be confined to a man and a woman joined in marriage. She had been excused from these duties temporarily, except in an emergency, but this caused resentment. Two of her colleagues, who were gay, accused Ms Ladele of being homophobic and complained that she was in breach of the Council’s Dignity for All Policy. Ms Ladele was subjected to disciplinary action and told that if she failed, when requested, to perform a civil partnership ceremony her employment might be terminated.
The tribunal held the Council liable for a number of acts in its handling of this matter, which amounted to unlawful detriment and/or harassment on grounds of religion. One example being, that the complaints against Ms Ladele had been dealt with expeditiously whereas concerns that she raised about her own treatment, including being called a homophobic, were not responded to. The Council had not respected her right to manifest her belief and had excluded her rights in favour of those of the gay community. The tribunal further held that the requirement for all registrars, including Ms Ladele, to perform civil partnership ceremonies did amount to indirect discrimination and could not be objectively justified. Since the Council could effectively provide this service without Ms Ladele taking part, it was not a proportionate means of achieving a legitimate aim. Fundamentally, the Council had disregarded the rights of Ms Ladele and had failed to strike a balance.
In 2005 the matter of conflicting rights came before a tribunal in Apelogun-Gabriels v London Borough of Lambeth. The question here was whether a Christian employee had been unfairly dismissed for distributing extracts from the Bible that were hostile to those of a homosexual sexual orientation. The tribunal concluded that a non-Christian who distributed similar literature would have been treated in a similar fashion. Therefore the reason for the dismissal was the complainant’s conduct in distributing homophobic literature and not his religious belief. This case confirmed that, whilst employees are entitled to belong to a religious faith and are protected from less favourable treatment for holding such beliefs, they do not have a carte blanche right to express those beliefs regardless of the impact on others. From a practical point of view, employers should include a provision in their anti-harassment policies prohibiting the expression of strongly held beliefs if this is capable of having a harassing effect.
Although both of these cases may seem to be extreme situations, there is another case, currently pending a full hearing, which concerns a common employment practice. In March this year, a tribunal ruled that a Catholic couple, both civilian employees of Strathclyde Police, could proceed with a claim for religious discrimination over the fact that their status has been changed from “married” to “married/civil partnership”. Mr and Mrs McQuade hold deep Christian beliefs regarding the sanctity of marriage and find their description as married/civil partner offensive on religious grounds. They are also claiming sex discrimination on the grounds that they were treated less favourably than single colleagues who were not affected by any change in their status. At the preliminary hearing, Strathclyde Police sought to have the claim struck out as having no prospect of success. They argued that the change in status was necessary following the Civil Partnership Act and to avoid forcing gay employees to disclose their sexuality. They also pointed out that they had acted in accordance with advice issued by ACAS, which states that:
“Avoid forcing people to identify themselves as either married or in a civil partnership. Because in most situations the treatment given to civil partners and married people is the same, there should be no need for separate identification.”
Nevertheless, the tribunal refused to strike out the claim, noting that the advice from ACAS was “guidance” only and a full hearing was ordered. Employers will have to wait until later in the year to find out if the tribunal decide that ACAS has got the balance right.
This is, of course, not the only area where rights conflicts. People of different religions can also have opposing views. No one said embracing diversity was going to be easy and employers may struggle to find the equilibrium. What we do know is that both views must be considered and any detrimental action justified. Unfortunately, where statutory rights conflict the situation is not clear cut and there is not an obvious right or wrong answer.