Gary McFarlane joined Relate Avon, which provides relationship counselling services, in 2003. He was required to, and did, sign up to Relate’s equal opportunities policy. This states that it “is committed to ensuring that no person … receives less favourable treatment on the basis of personal or group characteristics”. McFarlane was also required to abide by the British Association for Sexual and Relationship Therapy’s Code of Ethics.
In accordance with its equal opportunities policy and the code, Relate offers its services to both same-sex couples and heterosexual couples. However, McFarlane’s religious beliefs were that same-sex sexual activity is sinful and that he would therefore not endorse such activity. However, he was prepared to counsel same-sex couples where sexual issues were not involved.
In 2006, McFarlane said that he wanted to undertake a diploma course in psycho-sexual therapy, concerned specifically with problems of sexual dysfunction. However, McFarlane wanted to be exempt from any obligation to work with same-sex couples where sexual issues were involved. Relate wrote to McFarlane making it clear that any such stance would be in conflict with its equal opportunities policy. Relate asked McFarlane to confirm that he would counsel same-sex couples with regard to any sexual issues involved. McFarlane did not do so and Relate initiated its disciplinary procedure. At an investigatory meeting, McFarlane said that he would work with same-sex couples but a subsequent conversation with his supervisor undermined Relate’s confidence in this statement.
A disciplinary hearing was held and McFarlane was summarily dismissed. The reasons given were that he had “stated to Relate that [he] would comply with its equal opportunities policy and professional ethics policy in relation to work with same-sex couples and same-sex sexual activities, when [he] had no and [has] no intention of complying with Relate’s policies on those issues”. McFarlane issued an employment tribunal claim complaining, among other things, of discrimination and harassment under the Employment Equality (Religion or Belief) Regulations 2003.
The employment tribunal dismissed McFarlane’s complaints of discrimination and harassment. It said that he was not directly discriminated against because Relate would not have treated a counsellor, who for reasons unrelated to Christianity, was believed to be unwilling to provide counselling to same-sex couples and therefore unwilling to abide by Relate’s equal opportunities policy, any differently. Further, the tribunal said that McFarlane was not indirectly discriminated against because Relate had demonstrated that dismissing McFarlane was a proportionate means of achieving the legitimate aim of providing non-discriminatory services. McFarlane appealed the tribunal’s findings on discrimination. The Tribunal’s view was upheld by the Employment Appeal Tribunal (EAT).
This case is further confirmation that although the religion/belief regulations protect against direct discrimination arising from a religion or belief held by an employee, they do not protect the right to manifest that religion or belief as the employee chooses. In making its findings on indirect discrimination, the EAT relied on the reasoning in a previous case, Ladele v London Borough of Islington. That case was sent to the Court of Appeal and judgment was delivered after the EAT’s findings in this case. However, the Court of Appeal has confirmed that an employer’s commitment to an equal opportunities policy can, in appropriate circumstances, objectively justify any indirectly discriminatory treatment.
Mary Clarke, employment partner, DLA Piper
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