McFarlane v Relate Avon Ltd 2010/EWCA/Civ B1
ORAL HTML VERSION OF JUDGMENT
THURSDAY 29 APRIL 2010
As reported in BAILII
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.
The application came before me ( Lord Justice Laws) 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 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’. 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…’.
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 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
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 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.
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 :
on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons or
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
which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
which puts B at that disadvantage, and
which A cannot show to be a proportionate means
of achieving a legitimate aim.’
‘(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.’
Direct para 3 1 a of the 2003 Regulations and indirect paragraph 31b discrimination were both argued on the applicant’s behalf. As regards the former, the Employment Tribunal had adopted this approach:
‘We 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
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 and after the citation of a number of authorities dismissed the direct discrimination ground of appeal.
On indirect discrimination the EAT accepted that the employers had to show that the application to the applicant of a ‘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.
This application is dismissed.
Mr McFarlane is a Christian who believes that same sex sexual activity was sinful. He was dismissed by his employer Relate because he was unwilling to provide counselling to same sex couples. He brought a claim against Relate for direct discrimination on the grounds of religion or belief. His claim was dismissed and he appealed, which appeal was unsuccessful. He appealed for permission to appeal to the Court of Appeal which was also refused even though the former Archbishop of Canterbury Lord Carey had submitted a witness statement in support of the appeal. The Court held that his appeal would be unsuccessful by virtue of its earlier decision in Ladele. In that case, the Christian registrar was fairly dismissed for refusing for religious reasons to perform civil partnership ceremonies. Her religious views did not exempt her from her civil partnership duties.
The case is again one in which the Court had to balance the right of an individual to hold personal views and the right of equal respect to all in the community.