Legal dilemma: discrimination rights

A person of strong religious faith has asked me, the HR manager, if she can be moved from a workstation she shares with a gay man. That person openly discusses his lifestyle and relationship with another man, and the religious person says she finds such behaviour to be sinful and contrary to the laws of God.

The employer does not have to grant the employee’s request. The question recently came before the Employment Appeal Tribunal (EAT), which upheld the dismissal by the London Borough of Islington of a registrar who refused to carry out same sex civil partnerships. It overturned the judgment of the employment tribunal that Islington’s refusal to allow her to opt out of same sex civil partnerships was discrimination against her on religious grounds. It held, somewhat controversially, that to treat the registrar the same as all other registrars cannot be direct discrimination.

Perhaps the rationale to their judgement is best seen in the ruling on indirect discrimination. Islington had the legitimate aim of promoting equal opportunities and fighting all forms of discrimination. The promotion of the rights of the gay community was such a legitimate aim. The registrar was not allowed to pick and choose who she could provide services to.

Nevertheless, it is true that discrimination rights cause great difficulties when they clash. We have seen this between religion and sexual equality, religion and sexuality, and even between religions. In a 2008 judgment in the House of Lords, Lord Walker was bold enough to distinguish between personal characteristics that are protected by the discrimination acts.

In his first grouping, “personal characteristics which are innate”, he lists gender, sexual orientation, skin colour and disability. After this he lists characteristics that are “almost innate” and which depend on a person’s family circumstances at birth: nationality and religion.

Ultimately, it is a simple question of promoting a reasonable working environment. But, where someone does not tolerate someone else’s innate characteristics, it is not best practice to accommodate such intolerance.

Tom Walker, head of employment law, Manches

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