Our thoughts on the world of employment law - and beyond.

A Fine Balance?

With the UK’s first church wedding for a gay couple held less than three weeks ago, and same sex marriage being legalised at the end of March, it is now more important than ever to support diversity. However, "diversity" is a concept which by its very nature involves differences of opinion, which sometimes are hard – indeed, impossible – to reconcile.

Employers will want to do what they can to encourage diversity. This will on occasion inevitably involve employing people with widely differing religious and political beliefs and views. Of course, everyone is free to hold their own views. But recent cases have shown that in some circumstances, they cannot act on them in a way that infringes the rights of their fellow employees.

For example, a Christian nursery worker was recently dismissed for telling a gay colleague that "God does not condone the practice of homosexuality" and "if I tell you that God is OK with that I am lying to you". She also gave a Bible to the same colleague on a separate occasion. At the subsequent disciplinary meeting, it was found that the nursery worker's actions constituted harassment and amounted to gross misconduct. The worker has since brought a claim in the Employment Tribunal against her former employers for discrimination on the grounds of her religion or belief.

There has long been scope for conflict between protected characteristics and in particular between religion or belief and sexual orientation. This is an area in which feelings on both sides run high and employers face the difficult task of trying to balance these competing rights without causing offence or getting into unlawful territory. But how can this delicate balance be found and what happens if the gulf is too great?

The case law in this area has a lot to tell us about the way the judiciary have approached attempts to reconcile the disparate.


Ladele v London Borough of Islington [2010] IRLR 211 (CA)

This case will be familiar to many, given the extent of the press coverage it garnered at the time. Ms Ladele, a Christian registrar for Islington Council, refused to carry out civil partnership duties on the basis that same-sex marriages were "contrary to God's law". The Council took disciplinary again against her and found that she was guilty of gross misconduct as the refusal breached Council policies and was discriminatory towards gay people. She was subsequently dismissed.

Ms Ladele brought discrimination claims against the Council and initially succeeded before the Employment Tribunal. However, on appeal, the EAT found that providing services for couples wishing to enter into civil partnerships was a legitimate aim and the Council, as a public authority employer, was committed to promoting equal opportunities including the rights of the gay community.

Ms Ladele then applied to the European Court of Human Rights ("ECtHR") relying on her right to manifest her religious beliefs under Article 9 and 14 of the European Convention on Human Rights. Her application was rejected. The ECtHR held that the Council's aim of securing the rights of others was plainly legitimate; there had been no violation of Ms Ladele's rights.

But do all registrars need to be willing to perform civil partnerships? Could the Council have made an exception for Ms Ladele on the basis of the strength of her religious conviction? It was found that as the provision of civil partnership ceremonies is a non-discriminatory service and a legitimate aim, the Council was entitled to require all registrars to perform the full range of civil partnership functions. No exception was made.

As a general rule, we know that employers should try to make reasonable accommodation for their employees' religious beliefs, but we also know from the decision in Ladele that when competing rights are engaged, they do not always have to do so. Many have wrestled with the logic of this conclusion, but the force of the argument on the facts is a strong one.


McFarlane v Relate Avon Ltd [2010] IRLR 196 (EAT)

Mr McFarlane (a Christian relationship counsellor) was dismissed by Relate for refusing to provide counselling to same sex couples. In a similar vein to Ladele, an Employment Tribunal found that Relate had a legitimate aim of providing a full range of counselling services to all members of the community, regardless of their sexual orientation. As Mr McFarlane refused to provide these services, the Tribunal concluded that his dismissal was a proportionate means of achieving a legitimate aim.

Although Mr Mcfarlane argued that same-sex couples in need of counselling could seek help from other counsellors, the EAT found that where an employee refuses to comply with fundamental principles of an employer's ethos which it has pledged to uphold, the employer does not have to compromise these principles by making or considering arrangements to accommodate a specific employee's request.

On the one hand, the loss of Mr McFarlane's job was a severe sanction. On the other, he voluntarily joined Relate knowing that they operated an equal opportunities policy. The filtering of clients was simply not realistic or practical.

Again, an application was made to the ECtHR, but was rejected unanimously.


Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)

But it’s not all doom and gloom for employees. In the case of Smith, the High Court found in favour of the employee.

Mr Smith posted a link on his Facebook wall to a BBC News article entitled "Gay church 'marriages' set to get the go-ahead", and commented that this was "an equality too far". A colleague saw the comment and, believing it to be offensive and homophobic, made a complaint against Mr Smith to his employer.

A disciplinary investigation commenced, the result of which was Mr Smith's demotion. Mr Smith then brought a claim in the High Court for breach of contract. In a nutshell, the issue was whether Mr Smith's Facebook posts about gay marriage amounted to misconduct. If they did, his employer was entitled to demote him. If they did not, then his employer had acted in breach of contract.

The High Court held that Mr Smith was entitled to express his views on Facebook and that this was not misconduct. His employer had therefore acted unlawfully when it demoted him.

This case can be differentiated from Ladele and Macfarlane because the conduct objected to took place outside of the workplace and outside of working hours. It was also clear that Mr Smith was not using Facebook for work related purposes. Although he identified himself on Facebook as a manager at the employer organisation, no reasonable person would have thought he was expressing views on his employer's behalf.

Looking at these examples, it is clear that employers are faced with a difficult task when trying to balance the needs of employees with different protected characteristics. A balanced approach to recognising and managing religion or belief issues at work needs to be found, as do reasonable solutions to prevent costly and damaging litigation. After all, it is both in the employer's and employees' interests to find a solution through discussion, mutual respect and, where practical, mutual accommodation.

So what should employers do? Below are some practical hints and tips:

  1. Develop clear equality and diversity policies. This should make it easier to point out how behaviour deviates from these policies.  There's no point having such policies gathering dust on the shelf – make sure you're training managers and staff on how they work in practice, and ensure that people are clear about what is expected of them.
  2. Communicate strategies and explain them. Ensure employees understand why strategies are in place and how they are implemented.
  3. Update job descriptions. Ensure that all job descriptions are compatible with equality and diversity strategies. 
  4. Decide where the line is, and be robust about it. Identify in advance what constitutes reasonable behaviour and how to respond to unacceptable conduct. If you have clear corporate principles (as in the Relate case) ensure these are both widely known and also translated consistently into practice.
  5. Get support from senior management. Buy-in from the top is essential if managers are going to be confident about challenging unreasonable behaviour. 
  6. Find ways to solve the problem informally. If two parties are struggling to find common ground, training or mediation may be more effective in the long term than disciplinary action. 
  7. If all else fails, be prepared to use formal processes. Ensure that those who manage formal disciplinary proceedings apply the employer's principles consistently and fairly.

The clash between religion/belief and sexuality is a fertile (and frequent) battleground for the Daily Mail to wring its hands over, and employees may find the apparent prioritising of one protected characteristic over another hard to understand. Training and an overall increasing of employee awareness can only be helpful in addressing these concerns.

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