The recent employment tribunal decision in Lillian Ladele v London Borough of Islington has been the subject of much media attention.
While it is not the first case that has had to grapple with a direct conflict between the legislative protection afforded to employees of a certain religion or belief on the one hand and sexual orientation on the other, previous cases have tended to concern employees who have expressed their religious beliefs in such a way as to amount to harassment of employees of certain sexual orientations.
In this instance, it was the employee claiming religious discrimination who had been harassed.
Ladele, a registrar for the London Borough of Islington, brought successful claims against her employer for direct and indirect discrimination and harassment on the grounds of her religion or belief.
Ladele could not reconcile her Christian faith with taking an active part in enabling same sex unions to be formed. However, she was not calling for discrimination against homosexuals, she simply asked her employer to accommodate her beliefs by excluding her from the duties associated with same sex unions.
Islington wrongly assumed that one set of rights could trump the other and decided protection against discrimination on grounds of sexual orientation should be paramount. In doing so, the tribunal said, the council demonstrated a lack of understanding and appreciation of Ladele’s religious beliefs.
When faced with diametrically opposed views among employees, an employer must undertake a delicate balancing exercise and thorough assessment to decide fairly where the line should be drawn between competing protections.
While there is no question that an employer should prevent expressions of religious belief that constitute harassment on grounds of sexual orientation, such a duty should not ignore the duty for a person to have their religion or belief respected in the workplace.
Ultimately, the starting position for any employer when balancing conflicting rights should be that all rights are to be valued equally.
Unusually, Ladele succeeded in her direct discrimination claim because, on the evidence, she had been treated less favourably than comparators also subject to the council’s ‘Dignity for All’ policy. Evidence showed Islington had acted more quickly in dealing with complaints of discrimination based on sexual orientation than it had dealing with her case.
While there can be no legal justification for direct discrimination, it is possible in certain circumstances to justify indirect discrimination where it can be established that the employer has a legitimate aim and that the means employed to achieve such an aim are proportionate.
On the facts, it was established that Islington could have continued to meet the demand for the provision of civil partnerships by simply utilising alternative staff who did not share Ladele’s orthodox Christian views. Managing the staff rota in this way would not have necessitated any outlay of expense, nor would it have affected service delivery.
Evidence was provided to the tribunal that other local authorities had effectively managed the same issue by asking whether a registrar wished to become a civil partnership registrar and accommodating any wishes to abstain by not requiring them to be involved in civil partnership duties.
Islington tried to justify its treatment of Ladele with its Dignity for All policy. However, it was found that the implementation of the policy afforded only dignity to some. It is imperative to remember that in this case homosexuals were not subjected to any form of detriment as a result of Ladele’s wish not to take part in civil partnership duties. However, in ignoring Ladele’s beliefs and concerns, Islington inflicted a very real detriment on her.
Ultimately, before either religious or sexual orientation groups start trumpeting their interests in the workplace, they firstly need to understand and respect the rights of others. Feelings run high in these cases, and the approach that employers should adopt is to respect all views and to assess fairly how issues should be addressed in the workplace through the use of the principles of flexibility and fairness for all.
Key points
- When faced with conflicting rights, no set of protected rights is capable of ‘trumping’ another
- Employers must respect the views of all of their employees and accommodate them in the workplace to the extent that it is fair and reasonable to do so
- Where an employer decides that certain views cannot be accommodated in the workplace they must be able to demonstrate the reasoning behind this
Paul Griffin, partner, Norton Rose
Additional material by senior associate Adrian Hoggarth
