15th Dec 2009
The appellant employee (L) appealed against a decision of the Employment Appeal Tribunal ( I.C.R. 387) that the respondent local authority (X) had not directly or indirectly discriminated against her or harassed her under the Employment Equality (Religion or Belief) Regulations 2003 reg.3 or reg.5.
L was a registrar who registered marriages. When the Civil Partnership Act 2004 came into force, X designated all its registrars as civil partnership registrars, but L refused to participate in registering such partnerships because of her religious beliefs. X insisted that she should undertake at least some of these duties and disciplined her and threatened her with dismissal when she refused. An employment tribunal noted L's various allegations, including the (i) threat of termination of employment if she did not perform civil partnership duties; (ii) unauthorised sharing of certain material, which was confidential to L, with other employees; (iii) failure to consider her for the post of Superintended Registrar; (iv) failure to accommodate her religious beliefs; (v) failure to treat her differently from others when she ought to have been. It held that X directly discriminated against L. Further, the tribunal upheld the indirect discrimination and harassment complaints. The EAT reversed the tribunal's decision.
L contended that the EAT ought to have remitted at least some of the allegations of direct discrimination and harassment to the employment tribunal for reconsideration. L also argued that, for the purposes of indirect discrimination, the employment tribunal was entitled to conclude that her treatment was not a proportionate means of achieving the legitimate aim of providing effective civil partnership arrangement. The intervener and X argued that in light of the Equality Act (Sexual Orientation) Regulations 2007, X had no alternative but to require L, who had been designated a civil partnership registrar, to perform civil partnership duties.
(1) There was no basis to remit any part of L's case on direct discrimination or harassment. There were errors of law in the employment tribunal's approach. As the EAT had found, it could not constitute direct discrimination to treat all employees in precisely the same way, and, even if an inference of discrimination could be made, the explanation given for the less favourable treatment had to be considered. Also the EAT had been entitled to find that the proper hypothetical or statutory comparator was another registrar who refused to conduct civil partnership work because of antipathy to the concept of same sex relationships but which antipathy was not connected to or based upon his or her religious belief. There was no evidence on which a tribunal, properly directed, could have concluded that X's reasons for causing or permitting all, or at least some of, the matters raised in the various allegations were, or even included, L's religious belief. As regards harassment, if the tribunal had asked itself the right questions, in particular whether the grounds for the alleged harassment fell within reg.5, it could not have concluded that L had been harassed. (2) The employment tribunal had mischaracterised X's aim as it overlooked the point that the service which X aimed to provide was not merely one which was effective in terms of practicality and efficiency, but was also one which complied with its overarching policy of equal opportunities and non-discrimination. The fact that L's refusal to perform civil partnership duties was based on her religious view of marriage could not justify the non-implementation of X's aim to the full, namely that all registrars should perform civil partnership duties as part of its dignity for all policy. L was employed in a public job and was required to perform a purely secular task pursuant to the policy which sought to avoid discrimination. Her refusal to perform the task involved discriminating against gay people. Her view of marriage was not a core part of her religion, and X's requirement no way prevented her from worshipping as she wished. (3) The right to manifest religion or beliefs under the European Convention on Human Rights 1950 art.9 was a qualified right. L's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override X's concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community, Sahin v Turkey (44774/98) (2005) 41 E.H.R.R. 8 considered. (4) The argument that the prohibition of discrimination by the 2007 Regulations took precedence over any right which a person would otherwise have by virtue of his religious belief or faith to practice discrimination on the ground of sexual orientation accorded with the natural meaning of the Regulations, subject only to very limited exceptions under reg.14. Once it was decided that there was nothing in the 2003 Regulations which entitled L, having been designated a civil partnership registrar, to insist on her right not to have civil partnership duties assigned to her because of her religious beliefs in relation to marriage, it was simply unlawful for L to refuse to perform civil partnerships. It also meant that X had no alternative but to insist on her performing such duties and there was no justification for allowing L to officiate only at civil partnerships which involved no ceremonies.
The prohibition of discrimination by the Equality Act (Sexual Orientation) Regulations 2007 took precedence over any right which a person would otherwise have by virtue of his religious belief or faith to practice discrimination on the ground of sexual orientation.
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