The issue of diversity in the workplace causes difficulty for HR managers who are uncertain about the law and are nervous about offending employees. As reported in previous editions of Employment Highlights last year, there is potential conflict between religious rights and gay rights. The uncertainty surrounding this area of law has not been eased by the overturning of two high profile cases. The cases considered the question of who in the workplace is protected by laws prohibiting discrimination on the grounds of religion and sexual orientation.
Ladele v london borough of islington
In this case, the Employment Appeal Tribunal decided that a Christian registrar who refused to perform same sex civil partnerships on the grounds that it was against her religion and was disciplined and threatened with dismissal as a result did not have a claim for discrimination on the grounds of religion.
The case of Ladele was reported in the August 2008 edition of Employment Highlights. At the Employment Tribunal, Miss Ladele was successful in her claim for direct discrimination, harassment and indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003. However, the EAT held that there was no direct discrimination in that the council had applied the same rules to all registrars (that they should carry out civil partnerships and marriages). The complaint by the individual was that she was not being treated differently from others, her preference being for the council to make an exception due to her religious convictions. Although the council’s conduct at various times may well have been unreasonable that, in itself, did not demonstrate that the conduct was for a prohibited reason and that discrimination arose. The Employment Tribunal had made the error of confusing the employee’s reason for acting with the council’s response to her actions. Therefore, both the claim for direct discrimination and the harassment claim failed as there was no evidence that the employer had been motivated by religious belief.
In relation to the employee’s indirect discrimination claim, the EAT accepted that the council’s requirement that all registrars perform civil partnerships did have the effect of placing employees with strong religious beliefs at a particular disadvantage when compared with others who didn't share those beliefs. The question that needed to be asked was whether this requirement was a proportionate means of achieving a legitimate aim. Once the aim of providing the service on a non-discriminatory basis was deemed to be legitimate, then the EAT held that the council were entitled to require all registrars to perform the full range of services. The claimant could not pick and choose what duties she would perform depending upon whether they were in accordance with her religious views, particularly in circumstances where her personal circumstances would involve discrimination on grounds of sexual orientation. That stance was inconsistent with the non-discriminatory objectives which the council thought important. The council were entitled to adopt as an objective an unambiguous commitment to the non-discriminatory provision of services by all staff who in the normal course of events would be required to carry out those services. It would undermine that objective if the council made an exception for the claimant. In the result, the EAT substituted the finding that the council had not discriminated against the employee.
The EAT did suggest that there were some unsatisfactory features about the way that the council had handled the matter. In particular the claimant’s belief was strong and genuine and the EAT felt that not all of management treated the belief with the sensitivity which they might have done.
English v thomas sanderson limited
In the March 2008 edition of Employment Highlights, we reviewed the case of Mr English who had claimed harassment on the grounds of sexual orientation in that he had been subjected to sexual innuendo by his work colleagues alleging that he was homosexual. His claim arose under the Employment Equality (Sexual Orientation) Regulations 2003 (Sexual Orientation Regulations). The Employment Tribunal and the Employment Appeal Tribunal held, that although the claimant’s colleagues had perceived him to have the characteristics of a homosexual, they did not actually perceive him to be homosexual and therefore the homophobic banter was a vehicle for teasing the employee and was not based on their perception or incorrect assumption that he was homosexual. As such the unwanted conduct was not on the grounds of sexual orientation.
The Court of Appeal has overturned this decision, holding that the Sexual Orientation Regulations do protect an employee even in the situation where he was not actually gay and not perceived or assumed to be so by his tormentors. The majority of the Court of Appeal held that the conduct directed towards the employee was conduct that was clearly “on grounds of sexual orientation”. It could not have been the intention when the legislation was introduced that a claimant must confess his own sexuality in order to establish that the harassment fell within the legislation. It was therefore irrelevant whether the employee was actually homosexual or not. For example, the majority of the judges decided that, if they followed the EAT’s rationale, if an employee was homosexual and those who victimised him did not believe him to be so, then arguably the Sexual Orientation Regulations would not apply to any claim for harassment brought by the individual that was clearly incorrect. The dissenting judgment was particularly long and shows the difficulty in interpreting the Regulations. Lord Justice Laws would have decided that the employee did not come within the Sexual Orientation Regulations because the conduct was not perpetrated because of his actual, perceived or assumed sexual orientation. The sexual orientation merely provided a vehicle for teasing or tormenting him.
Ahmed v tesco stores ltd (2008)
Another case which has shown the difficulty in balancing the new legislation with running a business is Ahmed v Tesco Stores Ltd 2008. In this case, Mr Ahmed was required as part of his role of warehouseman to handle alcohol. He raised a grievance and then claimed constructive dismissal on the basis that, as a Muslim, such a requirement would conflict with his religious beliefs. The Tribunal held that the claimant did not succeed in his claim for direct discrimination and harassment. Any employee who, for reasons other than the Muslim faith, was not prepared to carry alcohol whilst employed as a warehouse operative would not have been treated any differently than the claimant. In addition, although the grievances did not produce an outcome which satisfied the claimant, they were heard and dealt with fully and within the proper timescale.
On the issue of indirect discrimination, Tesco did concede that the requirement to handle alcohol placed Muslims at a disadvantage. The Tribunal therefore focused on justification. It held that the aim of supplying stores with products containing alcohol is clearly a legitimate aim. It was not possible to maintain that supply without exposing employees to contact with alcohol. It was a proportionate means of achieving that aim.
What can an employer do?
- Managers and HR professionals are understandably nervous of the new forms of discrimination. What should employers do to minimise claims? Ensure that all HR staff and line managers are aware of the underlying issues and understand the conflicts that may arise. It is important to ensure that managers are aware of all sides of the issue and balance the claims. As in the Ladele case, employees may hold strong religious beliefs, but employers need to be aware of the company’s own principles of non-discrimination and equality and ensure that these are not undermined by an employee’s strong beliefs.
- Clarify to employees at interview stage what is required from their particular position. In the Ahmed v Tesco Stores Ltd case, the Tribunal were satisfied that the company had made it clear at the interview that the individual may have to touch alcohol. The difficulty for employers is that they may not always be able to think of potentially discriminatory issues. In addition, simply by inserting a question into an application form asking for an employee to provide information of any religious requirement or disability may not be sufficient. In the Ahmed case itself, the claimant did not complete that section.
- Ensure that both sides feel that their concerns are dealt with appropriately. As mentioned in the Ladele case, the EAT did suggest that there were some unsatisfactory features about the way that the council had handled the matter. The employer should ensure that beliefs of employees are treated with sensitivity. In the Ahmed case, the tribunal was satisfied that as far as possible, Tesco had taken steps to assist the employee and treat his views with sensitivity.
- Make it clear to employees that any form of harassment or discrimination on grounds of religion or sexual orientation will be treated seriously regardless of whether or not the employees believe that that person holds a particular belief or is of a certain sexual orientation.