Religion, belief and the right to discriminate

7 Feb 2017 By Laura Allner

A recent case involving a magistrate has put the conflict between religious observance and workplace instruction in the spotlight again

Susan Preston, who had been a magistrate for 16 years and was assigned to the South Derbyshire Bench, declined to hear a family case involving same-sex couple parenting because of her personal views about gay parenting. Following an investigation, Mrs Preston was issued with a formal written warning for misconduct and ordered to stand down from the family panel.

This follows a series of cases that have highlighted the potential conflict between the laws preventing both discrimination against employees on the grounds of their personal beliefs, and discrimination in the provision of services.

Decisions in cases such as London Borough of Islington v Ladele (which supported the employer’s right to discipline Ms Ladele for refusing to undertake activities she believed would condone homosexuality) have led to criticisms from some Christians, who believe the judiciary has not adequately supported their beliefs. The decision to take action against Mrs Preston will likely add further fuel to this fire.

Discrimination against employees

The basic position is that employees are protected from discrimination on the grounds of their religious or philosophical belief. Discrimination can be indirect, where the employer imposes a policy that places individuals with a particular belief at a disadvantage.

As the case of Mrs Preston highlights, this does not necessarily give employees the unfettered right to act in accordance with their beliefs in the workplace. An employer can defend a claim provided they can objectively justify their particular policy by demonstrating it is both necessary and proportionate.

Ms Ladele was a registrar who, following the introduction of civil partnership ceremonies, refused to officiate at these ceremonies on the basis of her own beliefs. She was disciplined by her employer, which threatened to dismiss her. Following a lengthy series of hearings and appeals, it was eventually ruled that Ms Ladele had not been a victim of discrimination. The employer was able to objectively justify its requirement as a proportionate means of achieving a legitimate aim – that aim being equality.

Can the employee be disciplined?

Whether or not an employer can take action against an employee will depend on the facts in each case. Evidently, a separation needs to be made between the employee holding a particular belief and the conduct in question. However, past decisions have indicated that employers are on firm ground for taking disciplinary action if the employee’s refusal goes against the employer’s own business aim to ensure its clients or customers are receiving equal treatment. An employer’s position can be bolstered if the organisation has a clear and easily accessible equality and diversity policy – highlighting the importance of HR policies that are otherwise often seen as mere box-ticking exercises.

Discrimination in the provision of goods and services

A further complexity is that providers of goods and services cannot discriminate against customers and clients on the basis of a protected characteristic, regardless of the beliefs of the particular provider. If an employee with strong religious convictions refused to serve a homosexual customer this would likely bring their employer within breach of the Equality Act 2010, leaving the organisation liable to costly claims.

Where is this all going?

Although case law has presented a mixed picture, on balance the courts support objective justifications that might otherwise curtail religious freedoms in the workplace – where this can be shown to support equality. Employers should nevertheless carefully consider whether legal advice is needed when disciplining employees in the context of these issues, and should consider the legitimacy and proportionality of their particular aim.

When considering proportionality, employers should always consider if the aim could be achieved by another means; for example, by ensuring its service is supplied without requiring a particular employee to provide it, where this contradicts the employee’s strongly held belief. We may see the law develop in such a way as to provide for ‘reasonable accommodation’ of those with a particular religious or philosophical belief, in the same way that employers are currently under a duty to make ‘reasonable adjustments’ for those with a disability.

Laura Allner is an employment lawyer at CMS Cameron McKenna

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