The Court of Appeal has refused permission for a Christian relationship counsellor to appeal against the EAT's ruling that his dismissal for refusing to counsel gay couples about sexual matters did not amount to religious discrimination.

The Court of Appeal confirmed that it was bound by its decision in Ladele, from which this case was indistinguishable. To allow Mr McFarlane's appeal would have undermined Relate's proper and legitimate policy of providing its services in a non-discriminatory manner. Its decision also was consistent with the established case law on the right to freedom of religion under the European Convention of Human Rights.

The Court also turned down the request of Lord Carey, the former Archbishop of Canterbury (who intervened in the appeal application), for a specialist panel of judges with "proven sensitivity to religious matters" as being contrary to the public interest. His assertion that the courts have, in their decisions to date, shown a lack of sensitivity and understanding towards religious beliefs was also rejected. In the Court of Appeal's view, while the law protects the right to hold and express a belief, it does not and should not protect the substance or content of that belief, just because they are based on religious precepts. The courts should not be required to give legal effect to what is subjective opinion.

Impact on employers

  • In determining whether there has been direct discrimination on account of an individual's religion or belief, tribunals will consider the employer's reasons for the treatment rather than the employee's reasons for acting in the way that they have. In this case (as in that of Ladele), the Court upheld findings that the employee had been dismissed not because of his religious views but because of the refusal to work in accordance with the employer's policy.
  • Where an employer's policy, or requirement to act in a particular way discriminates indirectly against an employee because of their religion, an employer will be able to justify its actions provided it can show that they amount to a proportionate way of achieving a legitimate aim.
  • To date, case law on conflicts caused by religious beliefs at work shows that employers can be justified in insisting that employees comply with their policies. However in practice, employers should carefully consider any request for flexibility to accommodate religious beliefs and attempt to strike a balance where possible. In this case, the employer's ethos and the fact that it provided services to the public made it unacceptable for it to accommodate the employee's desire not to provide services to certain sections of the public. Other employers may well find it possible to accommodate such flexibility, while upholding their ethos and policies.