Equalities : is there a pecking order?

Thanks to the new Equality Bill, discrimination is in the spotlight more than ever. It is perhaps ironic that with the introduction of a Bill whose main aim is to “harmonise” our discrimination laws, the potential for clashes between different strands of anti-discrimination protection remains a live issue.

This is not a new problem. When the new regulations outlawing discrimination on grounds of sexual orientation and religion/belief were introduced simultaneously in 2003 many commentators expressed concern about the potential for conflict. Some considered that religion/belief discrimination might impose a requirement to tolerate the intolerant, but would this be at the cost of other strands of anti-discrimination laws? Far from it, recent case law would suggest.

In McClintock v DCA, a JP resigned because his request to be relieved of his duty to place children with same-sex couples was refused. He was found by the EAT not to have been discriminated against on grounds of his religion/belief.

And, in McFarlane v Relate Avon Limited a Christian relationship counselor, dismissed for refusing to provide psycho-sexual therapy to same-sex couples, was found not to have been subjected to direct or indirect discrimination or unfairly dismissed.

In the key case of London Borough of Islington v Ladele, a Christian marriage registrar unsuccessfully claimed that she had been subjected to religious discrimination when she was disciplined for refusing to participate in civil partnership registration ceremonies. Ladele’s claim was successful in the ET, which felt that the council “placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of Ms Ladele”. But a subsequent EAT ruling found for the council.

Ladele was a significant decision in the battle for primacy of competing “equalities”. The EAT rejected the notion that an employer should seek to balance the wishes of different groups or should be required to say that an employee can choose which duties they should perform in accordance with their religious views.

The EAT concluded that Ladele’s personal stance involved discrimination on grounds of sexual orientation.

But a controversial aspect of the EAT’s decision is that in examining whether the council’s decision was justified, it chose to focus not on whether Ladele’s needs could be accommodated without affecting the service provided by the council, but on whether her objection, though based on religious faith, was itself discriminatory in nature.

In effect, the EAT gave primacy to the right not to be discriminated against on grounds of sexual orientation, over an employee’s deeply held religious beliefs – even though it was not found that Ms Ladele has conducted herself improperly towards colleagues or members of the public.

Ladele has – arguably – created a pecking-order for different strands of discrimination. As the law stands, employers should ignore the personal religious convictions of an individual if they offend another strand of discrimination such as sexual orientation – even if it might be feasible to accommodate them without causing individual offence. Whether future decisions by the appellate courts will focus more on proportionality and practicality and will attempt to balance the competing elements of different strands of discrimination, remains to be seen.

Key points

Where a provision disadvantages a religious group as a whole or an individual in particular, accommodation should be considered unless the provision can be justified.
Where a religion or belief leads the holder to participate in discriminatory behaviour, it is unlikely that they will be able to invoke the protection of the Employment Equality (Religion or Belief) Regulations 2003.
No individual has the right to exercise their religious beliefs in a way that breaches other aspects of the law and should not impose their views on others, particularly where this may cause offence.
Disciplinary action in respect of a personal stance that is inconsistent with an employer’s commitment to non-discriminatory objectives is likely to be justifiable whatever the source of that stance.