McFarlane v Relate Avon Ltd

JurisdictionEngland & Wales
JudgeLord Justice Laws
Judgment Date29 April 2010
Neutral Citation[2010] EWCA Civ 771,[2010] EWCA Civ 880
Docket NumberCase No: A2/2009/2733
CourtCourt of Appeal (Civil Division)
Date29 April 2010
Between
Mcfarlane
Appellant
and
Relate Avon Limited
Respondent

[2010] EWCA civ 771

Before: Lord Justice Laws

Case No: A2/2009/2733

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Lord Justice Laws

Lord Justice Laws :

INTRODUCTION

1

This is a renewed application for permission to appeal against the decision of the Employment Appeal Tribunal (“the EAT”) presided over by Underhill J given on 30 November 2009. By that decision the EAT dismissed the applicant's appeal against the determination of the Employment Tribunal rejecting his claims of unfair dismissal and religious discrimination brought against his employer, Relate Avon Ltd (“the employers”). Permission to appeal to this court was refused on consideration of the papers by Elias LJ on 20 January 2010.

2

The application came before me on 15 April 2010. I took the unusual step of reserving my judgment on a permission application because of the reach of the arguments advanced by Mr Diamond for the applicant relating to religious rights. The application is supported by a witness statement from Lord Carey of Clifton, a former Archbishop of Canterbury, to which I will refer further.

THE FACTS

3

The employers are part of the Relate Federation (“Relate”). As is well known Relate provides relationship counselling services. It is a member of the British Association for Sexual and Relationship Therapy (“BASRT”). BASRT has a Code of Ethics which requires the therapist to “avoid discrimination… on grounds of… sexual orientation” (paragraph 19). The employers themselves have an equal opportunities policy which requires them to ensure “that no person… receives less favourable treatment on the basis of characteristics, such as… sexual orientation…”.

4

The applicant entered into a contract of employment with the employers as a paid counsellor in August 2003. Upon doing so he signed up expressly to the employers' equal opportunities policy. The applicant is a Christian who (in the words of the EAT, paragraph 4) “believes that it follows from Biblical teaching that same sex sexual activity is sinful and that he should do nothing which endorses such activity”. In the course of his employment he experienced no difficulties of conscience in counselling same-sex couples where no sexual issues arose. At length however he sought to be exempted from any obligation to work with same-sex couples in cases where issues of psycho-sexual therapy (“PST”) were involved. That was refused on 12 December 2007 by the employers' General Manager. Further communications and discussions ensued. There was a disciplinary investigation in the course of which, at an investigatory meeting on 7 January 2008, the applicant said he would undertake PST with same-sex couples if asked, and would raise any problems he had with his supervisor. However (while there may have been some equivocation on his part) at length it became clear to the employers that he had no intention of counselling same-sex couples on sexual matters. On 18 March 2008 he was dismissed for these reasons:

“That on 7 January 2008 you stated to Relate that you would comply with its Equal Opportunities policy and Professional Ethics policy in relation to work with same-sex couples and same-sex sexual activities, when you had and have no intention of complying with Relate's policies on those issues.”

The dismissal letter went on to state that the applicant's actions “constituted gross misconduct and in the circumstances you cannot be trusted to perform your role in compliance with Relate's Equal Opportunities policy and Professional Ethics policy”.

THE NATURE OF THE CLAIM

5

The applicant launched an internal appeal against his dismissal but that was unsuccessful. He issued proceedings in the Employment Tribunal, advancing claims of discrimination on the ground of religion or belief, harassment, unfair dismissal and wrongful dismissal. All the claims were dismissed save that of wrongful dismissal which (as the EAT recorded at paragraph 13 of their determination) proceeded on a concession by the employers which they were not allowed to withdraw. It has no significance for the purpose of this application. There was no appeal against the dismissal of the harassment claim, so that the EAT was only concerned with the claims of discrimination and unfair dismissal.

6

The discrimination claim was founded on the requirements of the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”), paragraph 3(1) of which provides:

“3(1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if —

(a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but —

(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,

(ii) which puts B at that disadvantage, and

(iii) which A cannot show to be a proportionate meansof achieving a legitimate aim.”

Paragraph 3(3) provides:

“(3) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

7

Direct (paragraph 3(1)(a) of the 2003 Regulations) and indirect (paragraph 3(1)(b)) discrimination were both argued on the applicant's behalf. As regards the former, the Employment Tribunal had adopted this approach:

“[W]e concluded, firstly, that it was necessary for an actual or hypothetical comparator to be identified and, secondly, that an appropriate comparator would be another counsellor who, for reasons unrelated to Christianity, was believed by the respondent to be unwilling to provide PST counselling to same sex couples and therefore unwilling to abide by the respondent's Equal Opportunities and Ethical Practice Policies. The question, therefore, is whether the respondent would have treated [such] a comparator differently, and in our view it would not.”

THE DECISION OF THE EAT

8

The applicant submitted that this approach was inapt because it diminished or extinguished the need to protect the manifestation of religious belief as well as the fact that the belief is held. The EAT rejected this argument (paragraph 18) and after the citation of a number of authorities dismissed the direct discrimination ground of appeal.

9

On indirect discrimination the EAT accepted (paragraph 23) that the employers had to show that the application to the applicant of a “provision, criterion or practice” within the meaning of paragraph 3(1)(b) of the 2003 Regulations – here, their insistence on compliance with their policy – was a proportionate means of achieving a legitimate aim. The Employment Tribunal's conclusion at paragraph 42 of its determination that “the provision of a full range of counselling services to all sections of the community regardless… of their sexual orientation” was a legitimate aim which the employers were entitled to pursue was not disputed before the EAT (see paragraph 24). The applicant submitted, however, that Relate's absolute rule was disproportionate and there was no good reason why he should not be allowed to counsel heterosexual couples only.

LADELE [2009] EWCA Civ 1357, [2010] IRLR 211

10

The EAT took account of its own earlier decision in London Borough of Islington v Ladele [2009] ICR 387 where the facts were not dissimilar. In that case a registrar objected on religious grounds to “gay marriage”, and was disciplined by her local authority employer for refusing to conduct civil partnership ceremonies. At paragraph 27 in the present case the EAT cited Elias P at paragraph 111 of Ladele:

“In our judgment, if one applies the statutory test, the council was entitled to adopt the position it did. Once it is accepted that the aim of providing the service on a non-discriminatory basis was legitimate—and in truth it was bound to be—then in our view it must follow that the council were entitled to require all registrars to perform the full range of services. They were entitled in these circumstances to say that the claimant could not pick and choose what duties she would perform depending upon whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on grounds of sexual orientation. That stance was inconsistent with the non-discriminatory objectives which the council thought it important to espouse both to their staff and the wider community. It would necessarily undermine the council's clear commitment to that objective if it were to connive in allowing the claimant to manifest her belief by refusing to do civil partnership duties.”

The EAT held (paragraph 28) that this reasoning applied directly to the present case and dismissed the indirect discrimination ground of appeal. They also dismissed the unfair dismissal claim. This turned on factual points which play no part in the present application and I need say no more about it.

11

Ladele was appealed to this court. Judgment was given on 15 December 2009 ( [2009] EWCA Civ 1357, [2010] IRLR 211), which was of course after the EAT's decision in the present case. The employee's appeal was dismissed. An application for leave to appeal to the Supreme Court has been refused. This court (Lord Neuberger MR, Dyson and Smith LJJ) roundly rejected the suggestion that the council had been motivated by the appellant's...

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