The recent Employment Tribunal decision of the registrar who successfully claimed discrimination against her employer on the grounds that requiring her to participate in civil partnership services was against her orthodox Christian belief has highlighted some of the issues which arise in relation to discrimination on the grounds of religion or belief. In addition, it exposes the difficulties that employers face in trying to balance the different rights of employees.
The Employment Equality (Religion or Belief) Regulations 2003 (the Religion or Belief Regulations) came into force on 2 December 2003. They protect employees against discrimination by reason of any religion, religious belief, or philosophical belief. Discrimination can be either direct discrimination, indirect discrimination, harassment or victimisation. On 1 December 2003, the Employment Equality (Sexual Orientation) Regulations 2003 (the Sexual Orientation Regulations) came into force. These prohibit direct discrimination, indirect discrimination and discrimination by way of victimisation or harassment by reason of sexual orientation. Employers can find themselves having to deal with a direct conflict between the protection awarded to employees by both sets of regulations.
Ladele v London Borough of Islington
The employee in this case, Ms Ladele, worked for the London Borough of Islington (Islington) as a Registrar of Births, Marriages and Deaths. She had been employed in that position since November 2002. She held orthodox Christian views and could not reconcile her faith with taking an active part in enabling same sex unions to be formed. The requirement to conduct civil partnership arrangements arose in December 2005. The employees were not asked to consent to this. Ms Ladele expressed her concern informally to her line manager and, initially, an informal arrangement was in place whereby she swapped with her colleagues when she was rostered to work when there was a civil partnership. Eventually, this caused difficulties within the department, in particular with some lesbian and gay members of staff who made a written complaint to their line manager that in refusing to participate in the civil partnerships, Ms Ladele was breaching the “Dignity for All” policy. Ms Ladele made a counterclaim that she was being discriminated against, bullied and harassed at work by her colleagues and unsupported by management. In May 2007, disciplinary proceedings were commenced against Ms Ladele. In September 2007, Ms Ladele was found guilty of gross misconduct, but was offered a solution in that she would be removed from conducting civil partnership ceremonies but would be required to undertake other work in respect of civil partnerships, for example, administrative work. She was informed that if she did not accept the new job description then Islington would have to consider its position and one possible outcome could be that her contract of employment would be terminated. Ms Ladele issued tribunal proceedings against Islington claiming direct and indirect discrimination and that she had been harassed on the grounds of her religion and belief.
Ms Ladele succeeded in her claim for direct discrimination on the basis that she had been treated less favourably than her employer treated or would treat other persons. For example, the employer had:
- breached confidentiality in sharing details of its actions and proposed actions in relation to the employee with other staff (namely the employees who were complaining with regard to sexual orientation).
- subjected Ms Ladele to a disciplinary process. By doing so the employer had failed to balance the competing rights of Ms Ladele and the other staff. The employer had considered the importance of the right of the gay community not to be discriminated against, but could not show that it considered the rights of Ms Ladele as a member of a religious group.
- failed to redress allegations that Ms Ladele was homophobic. She did not accept that she was homophobic and had a good work record in dealing with all people that she came into contact with. Indeed she was not calling for discrimination against homosexuals, she was simply asking her employer to accommodate her beliefs.
- decided not to investigate or address the claimant’s concerns about her treatment and how her request to accommodate her religious beliefs had been addressed. Indeed it was Ms Ladele who was claiming harassment by the gay members of staff. In failing to investigate these allegations sufficiently, the employer had committed direct discrimination. The employer had failed to apply the Dignity for All policy to the behaviour of her colleagues.
The Employment Tribunal also found that the requirement that all registrars should carry out civil partnership ceremonies and registration duties was an indirectly discriminatory provision, criteria or practice (PCP). Individuals who held orthodox Christian beliefs were put at a disadvantage when compared with other persons who did not hold those beliefs. The employer sought to show that the PCP was a proportionate means of achieving a legitimate aim, namely the promotion of equal opportunities. The Employment Tribunal rejected the employer’s submission on the basis that there had been no diminution in service offered by reason of Ms Ladele not being able to undertake civil partnership duties. In addition, there had been evidence that other local authorities had removed registrars with strong religious convictions from the civil partnership rota. The Tribunal held that the employer placed a greater value on the rights of the lesbian, gay, bisexual and transsexual communities than on the rights of Ms Ladele in holding orthodox Christian beliefs. The employer’s action in applying the PCP was not a proportionate means of achieving a legitimate aim.
Finally, the Tribunal found that the employee was successful in the claim of harassment. A number of the acts of harassment duplicated the detriments relied on in the complaint of direct discrimination. In particular, the employer’s failure to take her complaint seriously and the accusations of homophobia were unwanted conduct which violated her dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for her on the grounds of religion or belief.
Balancing the two rights
The Employment Tribunal acknowledged in its decision that there are important rights protecting members of the lesbian, gay and bisexual communities addressed by the Sexual Orientation Regulations. Equally, employees have rights on the grounds of religion or belief which are protected by the Religion or Belief Regulations. Both sets of rights are important and one set of rights cannot override the other.
The Employment Tribunal referred to the case of R (Amicus) v Secretary of State for Trade and Industry and Christian Action Research Educations  IRLR 430 in which the Amicus union were challenging some of the provisions in the Sexual Orientation Regulations which allowed certain religious organisations to appoint persons holding only the relevant religious belief and which impacted on the rights of the lesbian, gay, bisexual and transsexual communities. It showed that there is a balance to be struck between the various competing rights. What is important is that an employer can show it has balanced the two claims.
Previous cases in this area have tended to concentrate on the harassment of employees of a certain sexual orientation. In Apelogun-Gabriels v London Borough of Lambeth (February 2006) the employee, who was a Christian, printed out various biblical extracts which were considered homophobic and distributed them to members of a workbased prayer group and “interested parties”. The Tribunal found that the material was “totally hostile” to homosexuals and that any non-Christian who distributed similar literature in the same way would have been dismissed. There was therefore no direct discrimination. There also would have been no claim for indirect discrimination in that, even if the prohibition of distribution of homophobic literature had placed the individual at a particular disadvantage because of his religious belief, the employer could show that it had a legitimate aim and the means of achieving it were proportionate. In another case, a Christian policeman claimed that he had been victimised by his employer due to his religious opposition to homosexuality. He was disciplined after emailing his fellow officers with biblical quotations about homosexuality being a sin in response to an email encouraging staff to wear a pink ribbon on their uniforms during gay history month. This case is currently at the Tribunal.
What should an employer do?
The Religion or Belief Regulations and the Sexual Orientation Regulations have introduced new rights which can conflict, and employers have a delicate balancing act to perform. In undertaking this the employer should ensure that:
- there is an equal opportunities policy in place which makes it clear what behaviour will be tolerated within the business. All rights should be valued equally and while there is no question that an employer should prevent expressions of religious belief that constitute harassment on grounds of sexual orientation, such a duty should not ignore the right of a person to have their religion or belief respected in the workplace.
- employees’ grievances in relation to any complaints for discrimination on the grounds of sexual orientation or religion or belief are taken seriously.
- where there is a conflict between two sets of regulations, the employer should be seen to be operating fairly and not favouring one group over another. No set of protected rights is capable of “trumping” another. If both parties can be seen to be victimising the other for their belief or their sexual orientation then both parties should be subject to disciplinary proceedings and the seriousness of their behaviour assessed.
- if it decides that certain views cannot be accommodated in the workplace it is able to demonstrate the reasoning behind its decision.
Given the media attention which the Ladele case attracted it is obvious that this area of the law continues to generate problems for employers. Employers must ensure that all rights are understood and valued equally before making any decisions.