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Tribunal top trumps: gays v gods

Before anyone thinks that I’ve gone mad and am blogging a suggestion for a new card game/Marvel blockbuster, I should clarify that this post has been prompted by the media coverage surrounding the recent Northern Irish ‘gay cake’ case, and in particular the now well-rehearsed hand-wringing about how the rights of LGBT people ‘trump’ those of religious belief.

In one word: nonsense.

In more words (I am a lawyer, after all), and as has been mercifully highlighted by the decision in the case of Mbuyi -v- Newpark Childcare earlier this week, it is clear that the Tribunal decisions in this area have been driven by nothing more than the principles of logic and fairness rather than any kind of sinister prioritisation of one protected characteristic over another.

For those not familiar with the Mbuyi case, it involved a nursery employee who identified as an evangelical Christian and who was dismissed after making comments to a lesbian colleague which reflected her (Ms Mbuyi’s) religious views on homosexuality.  As ever, the case turns on its facts: Ms Mbuyi was specifically approached and asked by her colleague whether Ms Mbuyi’s church would accept the colleague and her partner into its congregation, to which Ms Mbuyi made a comment along the lines that “God does not condone the practice of homosexuality, but does love you and says you should come to Him as you are”.  Ms Mbuyi also commented that her colleague was a sinner, but at the same time that “we are all sinners”.  Whilst the colleague was upset by these comments, she did not lodge any formal complaint against Ms Mbuyi; yet the nursery nevertheless took disciplinary action against her and ultimately dismissed her, all despite the fact that it had not conducted a thorough investigation and essentially relied on the colleague’s version of events alone. 

Unsurprisingly, and quite rightly, the Employment Tribunal ruled the dismissal to be unlawful.  It is difficult to see how anyone could argue that the dismissal was not only procedurally unfair but also (given that the colleague had initiated the discussion and reasonably could have been expected to have an idea of Ms Mbuyi’s views) substantively unfair.  It wasn’t as if Ms Mbuyi had approached her colleague and harassed her with unsolicited and/or malicious statements of her views.

We can quite easily contrast this to the high profile cases over recent years which have been held up as demonstrating the subjugation of religious belief rights to LGBT rights.  To summarise:

1. Bull -v- Hall – the Supreme Court ruled that a couple with strongly-held religious beliefs who ran a bed and breakfast and refused to provide a gay couple with a double room on account of those views had unlawfully discriminated against the couple. 

2. Ladele v London Borough of Islington – the Court of Appeal found that the council had been entitled to dismiss Ms Ladele for refusing to perform civil ceremonies for same-sex couples.

3. MacFarlane v Relate Avon – the Tribunal found that the counselling organisation was justified in dismissing the Claimant for his failure to confirm that he would be willing to provide relationship counselling to same sex couples.

Yes, religion appears to ‘lose’ in each case – but why?  As ever, some case-specific elements are relevant – for example, in the MacFarlane case a condition of Mr MacFarlane’s employment on joining Relate was acceptance of its equal opportunities policy, which required him to ensure that no one using its services would receive less favourable treatment on the grounds of any characteristic, including sexual orientation.  But the key principle common to all the judgements is clear: the UK is, by law, a secular state and so where you choose to offer services (or to work in a role where you will be expected to offer such services) to the general public, you are not entitled to discriminate against those members of the public who choose to avail themselves of those services and who possess a protected characteristic, even where providing the services might conflict with your own personal views or beliefs.

In the far more wise words of the Court of Appeal in the MacFarlane case:

"The conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled...It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.”

To be clear, I – like the Tribunals – do not seek to undermine what clearly have been genuinely held religious beliefs, and do not seek to suggest that religious belief has no part to play in society; indeed, I credit my Catholic upbringing for the values it instilled in me.  However, the key conclusion to draw is quite simple: the Tribunals have not allowed subjective views to influence an overarching objective principle.  Further, this principle is there to protect those with religious beliefs just as much as those with other protected characteristics: a religious couple refused accommodation on account of their beliefs, or a customer whose request for a cake with religious imagery on it is refused on account of the bakery owner’s distaste for the religion in question, would be just as discriminatory as any of the cases touched on above.

It is in a way unfortunate that the headline cases tend to involve losing Claimants whose cases rest on their religious belief (although this is perhaps inevitable given that is it the only protected characteristic which involves the exercise of conscience), leading some to conclude that those with strongly-held religious beliefs are somehow at the mercy of other protected characteristics (in particular, LGBT rights).  However, such a reading of the cases is in my view binary and masks the true legal principle at play.  Unlike in those wondrously simple childhood days of Dr Doom and Diablo (I suggest you google), no card wins.

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