Religious Freedom at Work

by Peter Smith

Religious freedom in the UK is being tried and tested, and its protections have been found wanting.

Last time, I considered the cases of Ewedia and Chaplin, who were prevented from wearing crosses as jewellery whilst at work. Two other conjoined cases were heard at the same time, also in the European Court of Human Rights (ECtHR).

Ladele’s predicament

Lillian Ladele was a registrar of civil weddings, first hired by Islington Borough Council in 1992. Islington had an ‘equality and diversity’ policy, ironically called ‘Dignity for All’ given her subsequent treatment by her employer. The policy stated at one point that the BC would ‘promote community cohesion and equality for all groups but will especially target discrimination based on…religion and sexuality’. Not a bad set of aims, at first blush. But what happens when religious and sexual ‘equality’ collide?

When she was initially employed, Ladele did not have to conduct same-sex civil partnerships. In 2004, the Civil Partnership Act created that possibility. After same-sex civil partnerships were introduced, councils began to conduct them. Islington was one of the first. In December 2005, it decided that all of its registrars should be designated as civil partnership registrars, even though it was only required to ensure there were a sufficient number of registrars to conduct civil partnerships.

Ladele quietly asked not be put on the roster for conducting civil partnerships. She has a sincerely held belief that same-sex unions are immoral, on the grounds of orthodox and widespread Christian teachings (a sentiment held by other major faiths) regarding the relationship between civil unions, sex, and procreation. Ladele was not campaigning against homosexuality; she merely asked quietly to focus her work on other areas. She tried to swap shifts informally with colleagues but, in March 2006, two other registrars, who were gay, complained about her actions. Islington BC insisted that Ladele change her employment terms, which did not at that stage force her to carry out civil partnerships, so that she was compelled to do so. Ladele refused; Islington disciplined her, and she was deemed in breach of the ‘Dignity for All’ policy. She was threatened with being sacked unless she complied.

The Employment Tribunal (at first instance) found that Ladele had been discriminated against directly and indirectly on the grounds of her faith, and that she had been harassed. On appeal, the Employment Appeal Tribunal reversed, holding that “once it was accepted that the aim of providing the service [civil partnership registrations] was legitimate – and in truth it was bound to be – then in our view it must follow that the council were entitled to require all registrars to perform the full range of services”.

In other words, the council’s belief that sexual orientation was more deserving of non-discrimination took precedence over Ladele’s religious freedoms, even though there would have been no loss in service to gay people wanting civil partnerships if they had accommodated her reasonable request.

The Court of Appeal then heard the case. It decided (my comments in italics)that Ladele’s religious beliefs were outweighed by the council’s equality policy regarding sexual orientation which, so far as sexual orientation was concerned, was “laudable”, as Ladele was working in a public job (albeit one that had substantially changed in nature), she was required to perform a “purely secular task” as part of her job, her refusal “involved discrimination against gay people in the course of that job” (that would completely and utterly unaffect any gay people), her objection was “not a core part of her religion” (both the Court and the council have taken theological positions on what is and what is not doctrinal) and the policy did not stop her “worshipping as she wished” (again, the Court became a religious arbiter).

Another excuse the Court came up with, was that Ladele’s refusal “was causing offence to at least two of her gay colleagues” (who manufactured and magnified their grievance in order to pursue Ladele). It concluded that the council’s “concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community” outweighed any protections she might have under Article 9 of the European Convention on Human Rights (ECHR; see below).

McFarlane’s case

Gary McFarlane worked for Relate, a national organisation that provided ‘confidential sex therapy and relationship counselling’. Relate had a code of conduct incorporated into the terms and conditions of employment of its counsellors, and an equal opportunities policy which contained the following:

Relate…is committed to ensuring that no person – trustees, staff, volunteers, counsellors and clients – receives less favourable treatment on the basis of person or group characteristics, such as…culture [or] sexual orientation.

Notice religious protection is not expressly covered in the policy, merely ‘culture’. McFarlane worked for Relate from May 2003 until March 2008. Initially, he did not object to counselling same-sex couples in relation to their overall relationship, but in 2007 he commenced a course in psycho-sexual therapy. PST aims to improve sexual activity and reduce sexual dysfunction, and McFarlane thought it would contrary to his Christian beliefs if he had to do give PST counselling to same-sex couples. After a letter was sent by other ‘concerned’ counsellors to McFarlane’s line manager, he was investigated and asked whether he would counsel same-sex couples in PST. McFarlane said he had not yet decided. Relate started disciplinary proceedings against him and McFarlane told Relate that, should he feel conscientiously conflicted out of a counselling sessions, he would discuss the matter with his supervisor. Relate accepted this but later dismissed him in March 2008 on the grounds of ‘gross misconduct’ because McFarlane had purportedly agreed to counsel same-sex couples in PST at the initial disciplinary meeting, but in fact had no intention to.

The Employment Tribunal took a similar approach to the EAT in Ladele’s case, in so far as it considered the obligations imposed on McFarlane discriminatory but that they were justified as a necessary and proportionate policy for achieving sexual orientation equality. An appeal to the EAT agreed that Relate was justified in their actions for fear that McFarlane would not be able to withdraw from counselling same-sex couples if sexual matters arose. Moreover, “it must be justifiable for a body in the position of Relate to require its employees to adhere to the same principles which it regards as fundamental to its own ethos and pledges to maintain towards the public….If it judges that to compromise those principles in its own internal arrangement would be inconsistent with its external stance, that judgment must be respected”.

Where do we go from here?

Both Ladele and McFarlane’s cases concern Article 9 of the ECHR (as do Eweida and Chaplin’s). Art 9 covers the freedom of thought, conscience and religion:

  1. Everyone has the right of freedom of thought, conscience and religion; this right includes freedom….to manifest his religion or belief, in worship, teaching, practice and observance.
  2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society …for the protection of the rights and freedoms of others.

The first question is whether the conscientious objections both McFarlane and Ladele claim are legitimate freedoms under 9(1)—that is, whether they are protected manifestations of religion or belief in practice and observance. If 9(1) is satisfied, the second question is whether the UK (through the courts and legislation) can fail to protect conscientious objection in these cases. There is a further ECHR test: whether the limits are themselves proportionate, and there is also the consideration of whether the UK should be afforded a broad ‘margin of appreciation’, i.e. discretion, in which the UK can decide whether or not such conscientious objection can be protected.

There is no space to elaborate fully the case law that gives shape to these matters. But given the quiet nature of their objections, and the facts that no detriment to gay people would have been suffered had a silent solution been found by Islington BC and Relate, these employers were disproportionate in their proselytising for sexual orientation, as a phenomenon that traduces religious freedom.

The Equality Act 2010 consolidated numerous measures regarding discrimination, including regulations proscribing it on the grounds of religion or sexual orientation. So when faced with competing claims of discrimination, how does an employer choose which to prefer? Islington and Relate preferred sexual orientation. Aside from the argument that excusing oneself from an activity isn’t really discriminatory if there is no loss in service, it is difficult to find overarching principles for reconciling the two. But given the growing preference for organisations to prefer sexual orientation to religion, it must be for the state to redress the balance and actively carve out a protection for the religious.

 

Peter Smith is a lawyer in London. He has previously worked for a Conservative Member of Parliament, and has written for Mercatornet.com and The Commentator.

2 Comments

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