Since 2003,
The press have recently reported on a claim brought by a Christian registrar who objected on religious grounds to being asked by her employer, Islington Borough Council, to preside at same-sex civil partnership ceremonies. Her views on same-sex partnerships caused offence to her colleagues and led to allegations of harassment and less favourable treatment by them. The employee, Ms Ladele, claimed in the employment tribunal that Islington Council should have excused her from presiding over same-sex ceremonies and that its failure to do so amounted to discrimination on the grounds of her religion or religious belief. Among her claims, Ladele complained that when she raised her concerns with her employer she was given less sympathy than gay colleagues who objected to her position on same-sex marriage. The facts of this case provide perhaps the starkest illustration of the possible conflict of rights — the difficulties faced by employers who are required both to respect the religious beliefs of employees, while at the same time protecting gay employees from harassment. It is possible to imagine that similar conflicts might arise in respect of the treatment of female employees based upon religious beliefs concerning the status of women, giving rise potentially to claims under the Sex Discrimination Act.
Under the regulations, Ladele has the right not to be treated less favourably on the grounds of her religion or belief. She also has the right not to have working practices imposed upon her, if those practices put her and other Christians at a particular disadvantage and cannot be objectively justified. In this context, objective justification involves an employer showing that the practice in question (here, the requirement for all registrars to preside at all civil ceremonies without the right to opt-out) is a proportionate means of achieving a legitimate aim. The question is, therefore, to what extent the interference with an individual’s religious beliefs can be justified for business reasons or to protect the rights of other employees.
Many may have sympathy with Ladele, given that her belief is in line with objections voiced at the time the Civil Partnership Act 2004 was introduced. However, popular sympathy would not entitle Ladele to make comments that are offensive to her colleagues. Although she has a right not to be treated less favourably on the ground of her religious belief, that right must be seen in the context of a society that protects individual freedoms only to the extent that they do not offend the freedoms of others.
Although we await the decision of the employment tribunal in Ladele’s case, the correct view must be that an employer is entitled to expect its employees to tolerate and respect each other’s views. Employers cannot tell their employees what to think but can impose restrictions upon how they behave in the workplace. It should, therefore, be possible to take a hard line with employees who offend others, even if they do so in accordance with genuinely held religious beliefs.
In 2007, the Employment Appeal Tribunal (EAT) was faced with a not dissimilar issue in the case of McClintock v Department for Constitutional Affairs (DCA). In that case, a Justice of the Peace resigned from office when his request to be excused from hearing cases involving the adoption of children where same-sex adoptions were a possibility was refused. He later asserted that his objection stemmed from his Christian beliefs. Refusing his appeal, the EAT found that the regulations were not even engaged as he had not made the religious nature of his objections known to the DCA at the time. However, they went on to find that even if the regulations had applied, the DCA was justified in insisting that magistrates must apply the law in accordance with their judicial oath, regardless of their moral or other personal objections to a particular practice.
The McClintock decision is undoubtedly correct and goes some way towards illustrating that religious beliefs should not be allowed to interfere with the proper performance of an individual’s job. However, the case should not be seen as establishing a principle that individual religious requirements will never be relevant in the modern workplace. To some extent, the judiciary is in a peculiar position which requires it to apply the law dispassionately. Can the same be said of registrars in Islington? Possibly it can — although Islington must treat Ladele’s concerns sensitively, it is difficult to see how her case differs from, say, a registrar of Arabian decent who objects to performing ceremonies for anyone of Israeli origin on the basis of their strong belief that the state of Israel should not exist. In that case, there would surely be no question that the employee could not be excused from performing their full duties as a registrar professionally and dispassionately. Gay equality organsation Stonewall certainly takes this view, arguing that public servants are paid to “uphold the law of the land” and are not therefore entitled to discriminate.
Although the regulations set out the legal protections afforded to those with religious beliefs (and other philosophical beliefs), they do not necessarily tell the whole story. Sometimes an employer will need to go further to satisfy the needs of its workforce, or the public at large. In September 2007, The Times ran a story about Sainsbury’s adopting a practice of allowing Muslim checkout assistants to decline to sell alcohol to customers. It is strongly arguable that in taking this step, Sainsbury’s went further than is required by the regulations. While some would argue that this is political correctness gone mad, the case differs from those that involve a clash of rights and, to some extent, the supermarket’s position is understandable if Muslim employees make up a significant proportion of its workforce in certain stores.
The interplay between the legal requirements of the regulations and public opinion is particularly interesting. British Airways (BA) was successful in its defence of a discrimination claim brought against it by an evangelical Christian employee, Nadia Eweida, in relation to a requirement of its uniform policy which placed a general prohibition on the visible display of jewellery. Eweida argued that this requirement, which in her case prevented the display of a Christian cross (although it did not prevent her wearing a cross that was concealed by the uniform), amounted to religious discrimination contrary to the regulations. This claim was rejected by the employment tribunal, which also found there to be no evidence whatsoever of Eweida’s more general claim that the airline was anti-Christian. Indeed, Eweida was the only one of 30,000-plus uniformed employees ever to complain that this requirement of BA’s uniform policy was offensive to Christians. While this is of some legal interest, what is perhaps more illuminating is the fact that, notwithstanding the legal position, BA became the subject of severe criticism in the press and by a number of senior church figures. It seems that public opinion, rather than the risk of discrimination, caused BA to amend its uniform policy to allow the open display of faith symbols.
To date, the employment tribunals and the EAT have been slow to allow the protection for an employee’s religious or other beliefs to support homophobic or other bigoted views. They have been particularly keen, for example, to ensure that British National Party members do not gain the protection of the regulations on grounds of their ‘beliefs’. However, few cases have been reported on this topic and Ladele’s case is likely to be the tip of a large iceberg of claims involving conflict of legal rights. How the courts make the necessary moral judgment as to who is more deserving of protection remains to be seen, although the correct view may be that personal freedoms deserve protection, whereas personal prejudices do not. In the meantime, employers should continue to protect the rights of all employees not to be harassed or subjected to less favourable treatment and seek appropriate advice if and when those rights clash.
Sarah Gregory is a partner and Tom Kerr Williams an associate in the employment department at Baker & McKenzie in
EmploymentJune2008
