Islington London Borough Council v Ladele (Liberty Intervening)

JurisdictionEngland & Wales
JudgeThe Master of the Rolls,Lord Justice Dyson,Lady Justice Smith
Judgment Date15 December 2009
Neutral Citation[2009] EWCA Civ 1357
Docket NumberCase No: A2/2009/0518
CourtCourt of Appeal (Civil Division)
Date15 December 2009

[2009] EWCA Civ 1357

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

The Hon Mr Justice Elias, Mrs M McArthur BA FCIPD, Ms B Switzer

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Master Of The Rolls

Lord Justice Dyson and

Lady Justice Smith

Case No: A2/2009/0518

Appeal No UKEAT/0453/08/RN

Between
Lillian Ladele
Appellant Claimant
and
The London Borough Of Islington
Respondent Defendant
and
Liberty
Intervener

Mr James Dingemans QC and Ms Sarah Crowther (instructed by Ormerods) for Ms Ladele

Ms Helen Mountfield (instructed by London Borough of Islington (Legal Services)) for London Borough of Islington

Ms Karon Monaghan QC and Prof Aileen McColgan instructed by, and for, Liberty

Hearing dates : 2 & 3 November 2009

The Master of the Rolls

The Master of the Rolls

1

This is an appeal, which, at its core, raises the question whether the London Borough of Islington (“Islington”) are entitled to compel Ms Lillian Ladele to register civil partnerships even though she objects to officiating at such registrations on the grounds of her religious beliefs. There are other issues, but that is the core issue. The Employment Tribunal (“the ET”) held that Islington could not so compel Ms Ladele, and concluded that Islington had been guilty of direct and indirect discrimination, and harassment, against Ms Ladele contrary to the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660 (“the 2003 Regulations”). The Employment Appeal Tribunal (“the EAT”) reversed this decision, holding that there had been no breach of those regulations, and that Islington had been entitled to act as they did.

2

On this appeal, the position is as follows. Ms Ladele seeks to restore the decision of the ET as to indirect discrimination and harassment, and to have remitted to the ET at least some of the issues of direct discrimination. Islington, on the other hand, say that the EAT were correct, but, following the case advanced by Liberty, they go further, at least on the core issue, and contend that they could not lawfully have acted in any other way in the light of the provisions of the Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263 (“the 2007 Regulations”).

3

Before turning to the relevant facts, it is right to mention one procedural matter. Ms Ladele's application for permission to appeal against the EAT's decision was initially considered on paper by Mummery LJ, who adjourned it to be heard on the basis that, if permission was granted, the appeal should immediately follow. Having considered the opening submissions of Mr Dingemans QC on behalf of Ms Ladele, we decided that permission to appeal should be granted, and the hearing then continued and concluded as a full appeal.

The factual history

4

The facts relevant to the core issue on this appeal are within a small compass, but it is necessary to go into the history in a little more detail, in the light of the other issues.

5

Having worked for Islington for the previous ten years, Ms Ladele became one of their registrars of Births, Marriages and Deaths on 14 November 2002. As a registrar, she held a statutory office during the pleasure of the Registrar General (under section 6 of the Registration Services Act 1953), although she worked for, and was paid by, Islington as the registration authority. Her status changed on 1 December 2007, when she became a direct employee of Islington pursuant to the Statistics and Registration Act 2007, and she remained employed by Islington as a registrar until she resigned with effect from 30 September 2009.

6

The Civil Partnership Act 2004 came into force on 5 December 2005. As is common knowledge, it introduced civil partnerships between same sex partners. By section 29(1), it defined a “civil partnership registrar” as “an individual who is designated by a registration authority as a civil partnership registrar for its area”. Section 29(2) required each “registration authority to ensure that there is a sufficient number of civil partnership registrars for its area to carry out the functions of civil partnership registrars”.

7

As the ET put it, Ms Ladele held “the orthodox Christian view that marriage is the union of one man and one woman for life”, and she “could not reconcile her faith with taking an active part in enabling same sex unions to be formed”, believing it to be “contrary to God's instructions”. In anticipation of the 2004 Act coming into force, Ms Ladele told her line-manager, Ms Mendez-Child, that she would not want to officiate at civil partnerships, and reiterated her position to Ms Round, Islington's Director of Corporate Affairs. Between May and November 2005, Ms Ladele was absent owing to sickness; during that period, Ms Mendez-Child decided that civil partnership duties should be shared out between all the existing registrars, although three of them (including Ms Ladele) had made it clear that they were unwilling to officiate at civil partnerships.

8

Accordingly, in early December 2005, around the time when the 2004 Act came into force, Islington designated all their registrars as civil partnership registrars. Thereafter, Ms Ladele made informal arrangements with colleagues to swap assignments, so she avoided officiating at civil partnerships. In late March 2006, two gay registrars, Mr Goncalves and Ms Kingsley, complained to Mr Lynch, Head of Islington's Democratic Services, that they felt “victimised” by Ms Ladele not carrying out civil partnership duties. Mr Lynch reported this to Ms Mendez-Child, who had a meeting next day with Ms Ladele, together with Ms Caines, Islington's Superintendent Registrar. Ms Mendez-Child took the view that, in refusing to perform civil partnerships, Ms Ladele was in breach of Islington's published “Dignity for All” equality and diversity policy.

9

Islington's “Dignity for All” policy provides that there should be equality and freedom from discrimination and harassment (on the grounds, among others, of sexual orientation and religious belief) for all staff, that complaints of discrimination would be promptly and thoroughly addressed and recorded, and that, where a complaint was established, appropriate action would be taken. The policy also requires Islington's staff to be treated with dignity and respect. Having stated that “[e]quality and greater diversity enables us to achieve service excellence and better represent the people of Islington”, the policy provides that “[a]ll employees are expected to promote these values at all times and to work with the policy”, going onto say that those who do not “may face disciplinary action”.

10

Ms Ladele's reaction to Ms Mendez-Child's view was that it was she who was not being accorded appropriate dignity, and that she was suffering discrimination as a result of her religious beliefs. Nonetheless, on 1 April 2006, Ms Mendez-Child wrote to Ms Ladele saying that her refusal to officiate at civil partnerships would be viewed by Islington as discriminatory, indeed, potentially as gross misconduct, and threatening formal disciplinary action. The letter offered Ms Ladele a “temporary measure” of only having to officiate at civil partnerships which involved no ceremonies. Ms Ladele did not accept that offer, but replied on 18 April, reiterating and explaining her views in moderate and clear terms, saying that she was being asked to “facilitate the formation of a union which [she] sincerely believe[d] was contrary to God's law”, and inviting Islington to accommodate her belief.

11

Thereafter, Ms Ladele continued to carry out her functions much as before. However, relationships among Islington's registrars were tense, and Ms Ladele felt victimised and picked on for her views, as she explained to Ms Mendez-Child at a meeting on 18 October 2006. At a team meeting on 2 November 2006, Mr Lynch said that matters would go on as they were until the registry services became part of the local authority (as was due to happen under the 2007 Act). However, on 14 November, Mr Goncalves and Ms Kingsley wrote to Ms Mendez-Child reiterating their concern about Ms Ladele (and one of the other registrars with similar views) not conducting civil partnerships, describing it as “an act of homophobia”.

12

In his letter in reply the following day, Mr Lynch explained to them that, until what was to become the 2007 Act came into force, he felt that there was little he could do. However, Mr Lynch's letter of 15 November 2006 also contained information about Ms Ladele, which was confidential to her. That was a breach of Ms Ladele's rights, and a breach of Islington's own “Code of Conduct for Employees”, as Mr Lynch was aware. Indeed, he headed the letter of 15 November “Private and Confidential”, but, unfortunately, this confidential information was then repeated at a meeting of Islington's LGBT [Lesbian Gay Bisexual Transgender] Forum.

13

On 17 January 2007, Ms Ladele had a meeting with Mr Lynch, at which she complained of being unfairly treated. Mr Lynch explained to her that, once the 2007 Act came into force, Islington would not accommodate her views by excusing her from civil partnership duties, as that would be contrary to its Dignity for All policy, and would involve discriminating against same sex couples. Islington does not seem to have taken any steps to investigate Ms Ladele's complaints or to consider disciplinary proceedings against anyone in connection with them.

14

The complaints from Mr Goncalves and Ms Kingsley continued, and, in May 2007, Mr Lynch instigated disciplinary proceedings against Ms Ladele, by inviting Mr Daniels, Assistant Director of Law, Commercial and Environment, to conduct an investigation.

15

At her initial meeting with Mr Daniels on 23 May, Ms Ladele made it clear that she wanted her religious views taken into account, and said that she had not acted in a discriminatory fashion. In his interview...

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