Religious discrimination employment tribunal cases have barely been out of the press during the past year, and the common theme is that they have all found in favour of the employer.
The most recent ruling involved committed Christian Duke Amachree who was sacked from his council job after suggesting to a terminally-ill woman that she “put her faith in God”. The employment tribunal ruled that it was reasonable for Wandsworth Council to sack the worker for gross misconduct and found the council had not discriminated against Amachree on the basis of his religion.
Then there was the case of Christian registrar Lillian Ladele, who was dismissed by Islington Council after she refused to conduct civil ceremonies when they were introduced in 2005, because she felt they breached her faith. In March, Ladele was refused the right to appeal. The courts ruled it was fair of the council to dismiss her because it had a duty to provide non-discriminatory services.
A similar case involved Gary McFarlane, a counsellor for Relate Avon, who refused to commit to provide psycho-sexual counselling to same-sex couples based on his Christian beliefs that same-sex sexual activity was sinful and that he should not endorse it. Relate offers its services to both same-sex couples and heterosexual couples and the EAT ruled that McFarlane was not discriminated on the grounds of his Christian belief.
Looking at the raw statistics, only about 1,000 of the 236,000 employment tribunal cases brought from April 2009 to April 2010 included religious discrimination claims. So it’s apparent that the press coverage has been disproportionate to the number of actual claims, reflecting the media’s appetite for controversy involving religion and the workplace.
Audrey Williams, a partner and head of discrimination law at Eversheds, believes the current crop of cases is simply “testing the boundaries” of the legislation. “Where’s the right balance to strike between individuals’ beliefs and their rights and entitlements? What can and can’t employers do? I think that’s what we’re seeing with these cases,” she says.
The Employment Equality (Religion or Belief) Regulations 2003 provide protection against direct and indirect discrimination, harassment and victimisation in the fields of employment and vocational training.
According to Velma Eyre, an associate at Pinsent Masons law firm, it’s the very subject of belief that poses the difficulty. “It doesn’t sit easily with legislation and is very different from other types of discrimination. It’s quite complicated and much of it is about expression,” she says. “You don’t have a right to manifest your belief in the workplace in any way you choose. In the cases we’ve seen it’s not religion [that has caused dismissal] it’s the fact [that the employee is] breaching their contract of employment.”
Libby Blaxall, a solicitor at the campaigners Christian Legal Centre, is not convinced. “The problem is not that religious discrimination legislation is woolly but rather that it is, we believe, being interpreted incorrectly,” she says. “The law prohibits discrimination on the grounds of religion or belief. But we have found that where there are competing rights, for example, religious rights versus rights of homosexual people, the tribunals in almost all circumstances ‘trump’ the religious rights and particularly where a Christian is involved.
“In these cases, there is little evidence that a ‘balancing exercise’ has taken place (the tribunal considering both sets of rights rather than favouring one set). We want a level playing field, and as these cases prove, that is what is missing at the moment.”
However, Eyre believes such cases will continue to go the way of the employer because, simply, establishing religious discrimination has occurred is difficult.
Stephen Simpson, senior employment law editor at XpertHR, agrees: “The key factor in employees losing these cases is that the employer usually has a good reason that justifies its actions, which is key to so many discrimination claims,” he explains.
“Examples of strong justification for what might otherwise be discriminatory treatment are: providing a discrimination-free service to users (a counsellor refusing to counsel same-sex couples): an employee becoming seriously hindered in doing his or her job (a teacher requiring a veil where communication is key to the job); and it being unlawful to discriminate in the provision of services to the public (a registrar who refused to conduct civil partnership ceremonies).
“As long as employers have such strong justification for their actions, the trend for employees to lose this sort of case will continue.”
But even if employers win a case, they still have to contend with the cost and (mostly negative) publicity that goes alongside employment tribunals. Eyre advises employers to attempt to accommodate individuals’ views when dealing with religion in the workplace. “If you can be open and understanding as possible and respectful of religious views it’s going to be for the best.”
Blaxall also urged employers to be respectful of people’s views. “We need employers to take seriously the law’s protection of religious rights and the principle of accommodation where those who, for valid religious reasons, cannot carry out particular tasks,” she says.
“This basically means that employers consider whether there are other ways that the same job can be done. In most cases, there are plenty of other employees who are able to carry out the task which is objected to by the religious employee.”