Faith in law tested when religion and sexuality collide

Published on Sunday 6 December 2009 21:52

A JUDGMENT of the Employment Appeal Tribunal (EAT) has been criticised by HR commentators and Christian protagonists as championing the legal protections available to homosexuals above those of religious groups. Despite this, the law as it applies to the "balancing" of competing laws aimed at preventing discrimination arguably remains uncertain.

Mr McFarlane, a Christian and former elder of a large multicultural church in Bristol, joined Relate Avon Ltd in May 2003 as a marital and couples counsellor.

In September 2006, he began a postgraduate diploma in psycho-sexual therapy with a view to equipping him with the skills required to deal with problems arising from sexual dysfunctions – a progression of his previous role.

He believed that homosexual activity was sinful and considered he should not be required to do anything endorsing it. Inevitably, the progression of his training led him into intractable conflict with his religious beliefs and he protested at the requirement of Relate to confirm his willingness to treat homosexual and heterosexual couples alike.

Referring to its unambiguous equal opportunities policy and code of ethics, both of which Mr McFarlane subscribed to on accepting his employment, Mr McFarlane was ultimately dismissed for his failure to confirm his continued willingness to conform.

With the aim of preventing any discrimination between those using Relate's services, Relate considered such assurances from employees as fundamental to its operation and their continued employment, with no exceptions.

Following his dismissal in March 2008, Mr McFarlane brought tribunal claims asserting he had been unfairly dismissed and discriminated against as a result of his religious beliefs. He complained both that his dismissal was an act of direct discrimination against him and that the requirement of Relate that employees must conform to its policies in treating couples irrespective of their sexual preferences indirectly discriminated against Christians generally.

The tribunal rejected his claims, considering that he had been dismissed for his refusal to confirm his adherence to Relate's policies, not because of his Christianity, and that all employees were required to do so irrespective of their religious beliefs. Furthermore, the tribunal held, Relate's requirement for this was a "proportionate means of achieving a legitimate aim".

Appealing to the EAT, Mr McFarlane argued – not unreasonably, some might suggest – that the tribunal's judgment involved an inappropriate distinction between his religious belief and the manifestations of that, being his refusal to endorse homosexual activities. The two, he said, were inseparable and equally deserving of legal protection against discrimination. The EAT disagreed in a judgment that may yet be reversed by the Court of Appeal.

However, in his leading judgment, Mr Justice Underhill stated "the fact the employee's motivation for the conduct in question may be found in his wish to manifest his religious belief does not mean that belief is the ground for the employer's action" – ie, the court considered context an important factor – particularly where an employer's objection to its employee's conduct is rooted in a general policy applied for justifiable reasons, including the prohibition of wearing of jewellery or religious clothing.

In these situations, employees' claims would only rest surely on the basis that their group as a whole is discriminated against, the court said. The EAT upheld the decision of the employment tribunal on this point, agreeing that Relate's requirements were a justified means of ensuring non- discriminatory provision of its services to all sexual persuasions.

Importantly, the EAT drew much support from a previous case in which a marriage registrar who refused to conduct ceremonies for civil partnerships on behalf of a local authority was disciplined. In that case, the claims of religious discrimination were also rejected. In rationale vehemently challenged by religious groups, Mr Underhill stated Relate was entitled to insist as it did "even if to do so is in conflict with (Mr McFarlane's] religious beliefs".

The case has led to criticisms in that it (along with the previous judgment), on one view, prioritises protections for homosexuals over those of particular religious faiths. Andrea Minichiello Williams, director of the Christian Legal Centre, said: "We call on the government to recognise the legitimate expression of conscience by Christians in the area of sexual orientation and provide protection where necessary."

Balancing the competing interests that protections against discrimination seek to safeguard is a serious challenge for employers and the courts. Currently, discrimination laws in the UK are fragmented and disjointed, covering various separate "strands". One of the main objectives of the Equalities Bill, currently before parliament, is to address this harmonising discrimination law.

&#149 John Lee is head of employment at MBM Commercial.