The Court of Appeal will today consider whether a Christian counsellor sacked after he refused to work with gay couples can appeal.
Last year an employment appeal tribunal ruled that Gary McFarlane, was dismissed fairly from his employer Relate Avon. It rejected his claim for discrimination on the grounds of religion.
Today the court could grant McFarlane the right to appeal, creating “real confusion” for employers over how to ensure workers abided by anti-discrimination policies, according to employment lawyers.
The case follows that of Lillian Ladele last year, which found the Christian registrar was lawfully dismissed after she refused to conduct civil ceremonies.
Mary Clarke, an employment partner at law firm DLA Piper, told Personnel Today: “Fundamentally [a successful appeal by McFarlane] would mean employers couldn’t have confidence about carrying out their non-discriminatory policies in their services.”
She warned a successful appeal would mean employers would have “to reassess entirely how they implement their equal opportunities policies” and would result in a “hierarchy of discrimination” where someone’s religious beliefs were deemed more important to protect than someone’s sexual orientation.
But she stressed that while it was possible the court would grant a right to appeal, she did not think McFarlane would win or that the judges would rule differently to the Ladele case.
Pending a decision Clarke advised employers to seek a commitment from new recruits that they could undertake the role in a non-discriminatory way and uphold the organisation’s equal opportunities policies.
She added: “If people are doubtful about [the commitment] employers can say ‘if you can’t do the role on a non-discriminatory basis we won’t recruit you’.”
Stephen Simpson, an employment law editor at XpertHR, said: “The employer should as a minimum meet with the employee and discuss his or her concerns. In the majority of cases, it’s likely that minor tweaks to the job will be enough to accommodate the employee’s beliefs.”
But he warned making exceptions for employees could “create a dangerous precedent” within organisations.