The House of Lords, in an Irish case, has held that regulations prohibiting discrimination on the grounds of religious belief or political opinion do not protect an individual who is less favourably treated by being denied employment because of actions they have taken in support of that religious belief or political opinion (McConkey v The Simon Community).
Mr McConkey was an ex-prisoner, who had been convicted of serious offences. At this time of his application for a job with the Simon Community, a charity working with homeless people, it was accepted that he no longer supported or approved of the use of violence for political ends. Nevertheless the Simon Community rejected his job application because it considered that employing him might pose risks for the vulnerable people cared for in the community.
In its decision, the House of Lords distinguished between holding and manifesting a belief and held that the Irish legislation is not concerned with the actions a person may take in support of their religious belief or opinion. Memorably, the House of Lords gave as an example a person belonging to a religious sect which favoured wife beating and said: "… it would be unlawful for me to discriminate against him, simply because of religious belief. But I would be quite entitled to refuse to employ him if he actually gave effect to his beliefs by helping a friend to beat his wife." Not at an example that employers will come across on a daily basis!
Impact on employers
- A similar approach has been taken in the UK in cases involving conflicts between employees' religious beliefs and the duties required of them to carry out their jobs or the employer's obligations to others. For example, in the case of Ladele v London Borough of Islington, the EAT held that a Christian registrar who refused to participate in civil partnership ceremonies had not been discriminated against because of her religious beliefs. Her employer had taken disciplinary action against the registrar not because of her religious beliefs, but because of her refusal to abide by its policy that all registrars carry out civil partnership ceremonies. Similarly, a Christian relationship counsellor, dismissed because he did not feel that he could provide psycho-sexual counselling to same-sex couples as it conflicted with his religious beliefs, failed in his claim for discrimination (McFarlane v Relate Avon Limited) and an employee dismissed for distributing homophobic biblical extracts to members of a work-based prayer group and other "interested parties" was dismissed because of his conduct and not because of his religious beliefs (Apelogun-Gabriels v London Borough of Lambeth).
- Employers often have to balance competing interests in the workplace and may face difficulties where an employee's beliefs cannot be reconciled with the employer's obligations to other employees or its own business objectives. Employers can take some comfort from the distinction the courts have drawn between the holding of a belief and the actions taken by an individual because of their beliefs. Where such actions are discriminatory against others, cause intimidation or affect the individual's job performance, the employer will not necessarily fall foul of the Religion or Belief Regulations if it disciplines, dismisses or refuses to employ the individual because of those actions.