Date
25/02/2010
The Issues
(1) The Employment Equality (Religion or Belief) Regulations 2003 ("the 2003 Regulations")
(2) The Equality Act (Sexual Orientation) Regulations 2007 ("the 2007 Regulations")
(3) Conflict of laws
The Facts
This is a case which was reported in these updates at both the Employment Tribunal and Employment Appeal Tribunal stages.
Ms Ladele was employed as a Registrar of Births, Deaths and Marriages and had worked for Islington for ten years. After the coming into force of the Civil Partnership Act in 2005, all registrars were enabled to act as civil partnership registrars. Mrs Ladele was a Christian.
She refused to conduct civil partnership ceremonies on the grounds of her religious belief. She tried to swop shifts where she could, so as to avoid officiating at civil partnerships. The situation led to two gay colleagues complaining that her actions were homophobic and that she was acting in breach of the Council's equality policy. The situation continued to deteriorate and more complaints were made against her. In turn, Ms Ladele complained that she felt discriminated against and unsupported by her employer.
In May 2007, the Council commenced a disciplinary process as it viewed her refusal as discriminatory to her colleagues. Her colleagues continued to complain. As an interim measure, her employer proposed that she would not be asked to participate in the ceremonies, but she was expected to perform all other duties relating to civil partnerships. Ms Ladele said she could not accept this. The Council required Ms Ladele to undertake signings of the Register and other administrative work relating to civil partnerships, but not conduct the ceremonies themselves. They stated that if she did not agree to this her employment would be terminated.
She brought claims of direct discrimination, indirect discrimination and harassment on the grounds of religion or belief.
The Council argued that it was simply requiring her to do what was required of all its registrars. It argued that it had a legitimate aim in providing the civil partnership service and was committed to promoting equal opportunities and fighting discrimination. It was obliged to provide the service and was therefore justified in taking the view that it cannot permit its employees not to do so for discriminatory reasons.
At first instance, the Employment Tribunal found that Ms Ladele had suffered direct and indirect discrimination and had been harassed as a consequence of her religious beliefs, including in respect of allegations that the Council had failed to accommodate her religious beliefs and had failed to apply the Dignity for All policy to the behaviour of Ms Ladele's colleagues. It accepted the Council's argument that promotion of equality was a legitimate aim, but the Council's treatment of Ms Ladele was not a proportionate means of achieving that aim.
The Council's subsequent appeal to the Employment Appeal Tribunal (EAT) was successful and the original decision overturned, finding there was no breach of the 2003 Regulations. Ms Ladele appealed to the Court of Appeal seeking to restore the Tribunal's original decision. In reply, the Council argued that the EAT decision was correct but also argued that the Council would not act in any other way in view of the 2007 Regulations.
The Decision
The Court of Appeal upheld the EAT decision - namely that Ms Ladele had not been directly or indirectly discriminated against, or harassed. Lord Neuberger agreed with the judgment of Elias J at EAT level who said that Ms Ladele's complaint "is not that she was treated differently from others, rather it was that she was not treated differently when she ought to have been." Her complaint was about "a failure to accommodate her difference, rather than a complaint that she is being discriminated against because of that difference… [i]t cannot constitute direct discrimination to treat all employees in precisely the same way." In relation to the allegations of direct discrimination, Neuberger said "the notion that Islington, or any officers or employees responsible for the acts of alleged discrimination were motivated by Ms Ladele's religious belief, rather than by her refusal to officiate at civil partnerships is inconsistent with the fact that Islington's concerns would undoubtedly have been put to rest if Ms Ladele had agreed to perform all her assigned civil partnership duties… if she was willing to carry out the ceremony… then no further action would be taken." Consequently, she was not entitled to insist on her right not to have to undertake the civil partnerships assigned to her because of her religious belief.
Comments
It also went on to consider the second issue of the conflict of rights, as raised by the Intervener, Liberty. Liberty asked the Court to consider whether the Council had no option but to act as it had because of the effect of the 2007 Regulations. The Court held that following the logical wording of the 2007 Regulations, the prohibition of discrimination under the 2007 Regulations took precedence over any right a person would have by virtue of their religious belief or faith (save in the limited circumstances permitted by Regulation 14).
This remains a controversial decision but this case does provide some much needed clarification to employers in setting out how far they must go to accommodate employees whose jobs conflict with their duties. This case confirms that employees are free to have their beliefs but employers are entitled to require them to comply with their equality policy.
Rachel Billen - Associate Solicitor, Employment Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: rachelbillen@veitchpenny.co.uk
This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.