Employment Update: Discrimination

26 January 2009

Employment Group

No religious discrimination where Christian beliefs run counter to employer’s lawful instruction

LB Islington v Ladele was the well-publicised case of the Christian registrar. When the Civil Partnership Act 2004 came into force, she told her local authority employer that, because of her religious views on marriage, she would not participate in registering any civil partnerships.

There was a disciplinary hearing at which she was told this was contrary to the employer’s ‘Dignity for all’ policy and it could not accommodate her wish to be excused from participating in such ceremonies. She then claimed direct and indirect discrimination and harassment on the ground of her religious beliefs.

Although her claims succeeded at tribunal, the EAT has now allowed the employer’s appeal and dismissed all her claims. In particular, the EAT noted that it cannot be direct discrimination to treat all employees in the same way. As for indirect discrimination, although the employer’s requirement put someone with the employee’s religious beliefs at a particular disadvantage, an employee should not be permitted to refuse to provide their services for discriminatory reasons.

Points to note –

  • This is a very helpful claim for employers now that there are so many ‘strands’ of unlawful discrimination (sex, sexual orientation, race, disability, age and religion or belief). The EAT stresses that employers are not expected to make ‘a vague attempt to balance irreconcilable positions’ where the different ‘strands’ collide. They should focus on the established statutory test of whether the means adopted by the employer are a proportionate way of achieving a legitimate aim.

  • The civil rights charity Liberty, which became involved in the case, suggested to the EAT that to allow some employees the right to refuse certain duties would in itself amount to a form of segregation. The EAT disagreed and said that it should be permissible for employers to find pragmatic ways of seeking to accommodate religious beliefs (e.g. in this case to organise work so that the claimant never had to officiate at the registration of a civil partnership). However, it was clear that, although employers may be entitled to do this, there was no legal obligation on them to do so.

Sexual orientation discrimination can occur where victim is not gay and his harassers know it

In English v Thomas Sanderson the Court of Appeal (but only by a 2/1 majority) has overturned the EAT and decided that an employee can be harassed 'on grounds of sexual orientation' when he is subjected to homophobic taunts, even though he is not himself homosexual and the taunting colleagues know that.

The Court of Appeal judges were concerned to establish the point at which otherwise tolerable behaviour becomes unlawful discrimination. The issue arises because the relevant European directive talks about unlawful harassment being ‘on grounds of sexual orientation’ without the claimant’s actual, perceived or assumed sexual orientation being an issue at all. The court looked at a long line of cases where the boundaries of discrimination law had been extended. In the 1984 case of Showboat it was held to be race discrimination when an employee disobeyed his employer’s instruction not to discriminate against someone else. In the recent case of Attridge Law it was disability discrimination for an employer not to allow an able-bodied employee to work hours that enabled her to care for her disabled child.

The cases showed that an employee may have 'grounds' to bring an unlawful discrimination claim without him/herself being black/disabled etc. It followed that the employee in this case should be allowed to bring a sexual orientation claim even though he was not himself gay.

Points to note –

  • The claimant succeeded in this claim because, in general terms, incessant mockery had created a degrading and hostile working environment.

  • Employers should be sure that they have policies in place, and monitor how they operate in practice, to ensure that ‘workplace banter’ does not get out of hand and make them defendants to an unlawful discrimination claim!