Employment Flash - 4th December 2009

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Religious discrimination...

McFarlane v Relate Avon Ltd [2009] UKEAT 0106 09 DA

M a counsellor with R, who specialise in relationship counselling of couples, did not wish to counsel couples of the same sex if it involved discussion of sexual behaviour because of his christian beliefs. R dismissed M for failing to give an unequivocal commitment to counsel same sex couples. ET dismissed claims for direct and indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660 and for unfair dismissal but on a concession from R found there had been a wrongful dismissal.

The EAT confirmed the ET's decision. Amongst other matters on direct discrimination it addressed an argument that an illegitimate distinction had been made by the ET in its approach to direct discrimination between the immediate conduct leading to the act complained of (unwillingness to counsel same sex couples) and the religious belief of which that conduct was an outward sign. M argued for religious belief to be effectively protected it was necessary to do so in relation to the belief and the manner in which it is manifested. The EAT rejected the argument as a matter of principle but accepted that it may have practical application: in some cases an objection by an employer to the manifestation of a religious belief will be impossible on the facts to distinguish from an objection to the belief that underpins it; in other cases the facts may show that there is a clear distinction between the employer's objection to the manner in which the employee is manifesting his belief and an objection by the employer to the belief itself (a no jewellery policy applied to all will therefore cover the wearing of jewellery with religious significance). EHRR case law demonstrates that under the Convention the employee does not have an unqualified right to manifest his religion (Kalac v Turkey [1997] 27 EHRR 552, para 27) and this was echoed in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, para 22.

In dealing with indirect discrimination R's position on the pcp was that an accommodation of M would be entirely against its ethos as a non-judgmental approach was intrinsic to its work; was the dismissal of M a proportionate means of achieving the legitimate aim of providing a full range of counselling services to all sections of the community regardless of sexual orientation? The short answer is 'yes', R were entitled to insist that all employees participate in the services in question even if in conflict with their religious beliefs so that they would not be acting inconsistently with the beliefs that R espouses. Although L B of Islington v Ladele [2009] ICR 387 (unavailable to the ET as it was decided the day after M's case) is not direct authority on anything save its own facts (the assessment of proportionality in cases of this nature must be fact sensitive), like cases ought to be treated alike; Islington had substantially the same sought of aim as R, L a similar objection to M, dismissal resulting and the ET and EAT determining there was no discrimination. M's argument that there were ways of accommodating M's views, misses the issue: it is not about the practicability of accommodating a dissenting view but whether R could legitimately refuse to accommodate views which contradicted its fundamental declared principles; therefore detailed evaluations of reasonable adjustments are out of place: the question is whether the employer is entitled to treat the issue as one of principle, in which compromise is inappropriate.

On unfair dismissal, the ET had rejected R's reason for dismissal as set out in their letter of dismissal: that M had given a false impression of his true intentions when asked by R about his counselling intentions once the issue of his beliefs had come to light; M had at most fudged the position, he was inconsistent and equivocal rather than dishonest. However R relied on a SOSR characterised by the ET as a loss of trust and confidence in M's ability to provide the full range of counselling services. The EAT did not find that characterisation helpful (which the ET had taken from the way R had put the matter). Although in most cases of dismissal the employer will have lost confidence in the employee it is more helpful to focus on the specific conduct rather than resort to general language; the 'mission creep' of the use of 'trust and confidence' outside constructive dismissal cases should be resisted. The EAT also felt that this was not a SOSR but was to be treated as being for conduct and therefore within the reasons under s.98(2) ERA.

As to the inconsistency between dismissing the unfair dismissal claim whilst upholding the wrongful dismissal claim on the present facts: that arose because R had made a concession, the ET had refused to allow the concession to be withdrawn (the attempt to withdraw was made after the case had closed but before the ET had considered their judgment), the ET may have been entitled not to allow the withdrawal but were wrong to express the view that the concession was correct.

Employment Team