Case of the week: Religion and sexual orientation discrimination

Religion and sexual orientation discrimination

McClintock v Department for Constitutional Affairs

FACTS Mr McClintock served as a Justice of the Peace and was a member of the Family Panel. As part of his duties, he had to decide whether children should be placed in care, fostered or adopted. He objected to the possibility that he might be required to place a child with a same-sex couple and asked to be excused from hearing cases that might raise this issue. The reason he gave was that he considered there was insufficient evidence that such a placement was in a child’s best interests and he felt that children were being treated as guinea pigs in a social experiment. When the Department for Constitutional Affairs (DCA) refused to agree to McClintock’s request he resigned from the Family Panel. He complained that he had been subject to direct and indirect discrimination and harassment on the grounds of religion and belief.

DECISION The tribunal rejected McClintock’s direct discrimination claim as he had never made plain, and the DCA was therefore unaware, that his objection to carrying out his duties was underscored by any conscientious or religious conviction. He had presented his objections on the basis that the implications of placing a child with a same-sex couple needed more research.

The harassment claim was also dismissed as no-one had sought McClintock’s resignation and he accepted that he had been treated courteously and with consideration throughout.

With respect to indirect discrimination, the tribunal found that the relevant criterion was that those who took the judicial oath should honour it and that McClintock was treated in the same way that anyone else who took this oath would have been irrespective of their religion or belief. Even if there had been indirect discrimination, this would have been justified, as magistrates could not be permitted to opt out of cases where they might object to or disagree with the laws to be applied.

The focus of the Employment Appeal Tribunal (EAT) appeal was the indirect discrimination claim. Although the tribunal had been wrong to reject this aspect of the claim on the grounds that the DCA applied the requirement to abide by the judicial oath to everyone, the EAT nonetheless also rejected the complaint. McClintock had not been disadvantaged because of any religious belief he held and even if he had been, such discrimination would have been justified as identified by the tribunal.

IMPLICATIONS This case highlights the tricky issue of the dividing line between discrimination on grounds of sexual orientation and discrimination on grounds of religion and belief. Employers faced with an employee who, because of religious beliefs, refuses to carry out duties related to gay people must perform a delicate balancing act. Each case will turn on its own facts. However, where a person’s beliefs can be easily accommodated without a significant workplace impact, for example by re-allocating duties among a team, this should be done. Offensive homophobic behaviour will never be acceptable and should be treated as a conduct issue.

Mary Clarke, partner,
DLA Piper

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