In Ladele v The London Borough of Islington and Liberty, the Court of Appeal has confirmed the decision of the Employment Appeal Tribunal (EAT) that Ms Ladele, a Registrar of Births, Marriages and Deaths at Islington Council who held strong Christian beliefs, had not suffered discrimination on the grounds of her religion or belief when she was required by the Council to perform same sex civil partnership ceremonies. The Court made it clear that the Council had a legitimate aim to provide the full range of civil partnership services without discrimination and so was entitled to require Ms Ladele to perform the ceremonies despite her objections to doing so based on her Christian belief. Moreover, having been designated a Registrar, it was unlawful under the Equality Act (Sexual Orientation) Regulations 2007 for the Ms Ladele to refuse to perform such ceremonies.
What happened in this case?
When the Civil Partnership Act 2004 came into force in December 2005, Ms Ladele’s employer, Islington Council, designated all of its existing Registrars as “civil partnership arrangement Registrars”. Ms Ladele, who is a Christian, said that she could not reconcile her faith with taking an active part in enabling same sex unions to be formalised, believing it to be “contrary to God’s instructions”. The Council made it clear to Ms Ladele that refusing to carry out any civil partnership duties conflicted with its equality and diversity policy, “Dignity for All”. For some time, Ms Ladele managed to avoid performing civil partnership ceremonies by swapping her cover in the rota with other members of staff. In 2006 certain members of staff made a written complaint to their manager that her refusal to participate in civil partnerships breached the Dignity for All policy and was discriminating against gay people.
In May 2007 disciplinary proceedings were commenced against Ms Ladele and she was found guilty of gross misconduct as a result. In a letter, the Council warned her that if she refused to perform those duties, the Council would consider terminating her employment. Ms Ladele brought a claim in the Employment Tribunal that she had suffered direct and indirect discrimination and harassment on the grounds of her religion or belief contrary to the Employment Equality (Religion or Belief) Regulations 2003.
The Tribunal found that Ms Ladele had suffered both direct and indirect discrimination. She had also suffered harassment because the Council had failed to take her complaints seriously, by accusing her of sexual orientation discrimination and by subjecting her to the disciplinary process. The Council appealed to the EAT. The EAT allowed the appeal and dismissed all of Ms Ladele’s arguments. The EAT found that the Council acted as it did not because of Ms Ladele’s religious views, but because she was not carrying out her duties. For the purpose of assessing whether she had suffered direct discrimination, it was necessary to compare her treatment with another Registrar who refused to carry out civil partnership duties due to antipathy to same sex relationships unconnected to any religious belief. Since all employees would be treated in the same way, there would be no direct discrimination. The harassment claim was also dismissed because the Council did not have a discriminatory reason for its actions. As regards indirect discrimination, the Council had a legitimate aim to provide effective services relating to civil partnerships in a non-discriminatory way. This legitimate aim entitled the Council to require all Registrars to perform a full range of civil partnership duties. Ms Ladele appealed to the Court of Appeal.
The Court of Appeal’s decision
Ms Ladele’s appeal was dismissed. The Court of Appeal accepted the EAT’s decision on direct discrimination, the appropriate comparator and harassment. Perhaps the most significant part of the decision concerned the reasons for rejecting her claim for indirect discrimination. It was agreed that the Council’s policy requiring Registrars to perform civil partnerships put Ms Ladele, as a Christian, at a disadvantage. The Court therefore focused on whether the Council’s actions were justifiable as a proportionate means of achieving a legitimate aim. The Court of Appeal confirmed the EAT’s decision that the Council’s aim was to comply with an “over-arching” policy of being “an employer and a public authority wholly committed to the promotion of equal opportunities and to require all its employees to act in a way which does not discriminate against others”. Requiring Ms Ladele to preside over civil partnership ceremonies was not a disproportionate means of achieving that aim since the Dignity for All policy was of “over-arching” significance to the Council with “fundamental human rights, equality and diversity implications”. Notwithstanding the policy, Ms Ladele was free to hold her Christian beliefs and free to worship as she wished.
Two final points are worth mentioning. First, with regard to Article 9 of the European Convention on Human Rights (the right to freedom of thought, conscience and religion), the Court referred to the House of Lords decision of Regina (SB) v Governors of Denbigh High School  UKHL 15 which provided that Article 9 does not require a person to be allowed to manifest their religion at any time or place of their own choosing. This case law supported the Court’s view that Ms Ladele’s desire to have her religious views respected should not override the Council’s policy to ensure all Registrars afford equal respect for gay people as they do the rest of the community. Second, the Council is under a legal obligation under the Equality Act (Sexual Orientation) Regulations 2007 to provide their services without discrimination on the grounds of sexual orientation. The Council therefore had no alternative but to require Ms Ladele to perform all civil partnership duties along with all other Registrars.
What this decision means to employers
The Religion and Belief Regulations protect an employee’s right to practice a religion or hold a belief. However, the Court of Appeal’s decision reasserts and makes clear that the Regulations do not necessarily entitle an employee to manifest his or her religious beliefs as he or she chooses. This is particularly the case when the exercise of the belief could breach other peoples’ rights not to be discriminated against on any prohibited ground (such as sexual orientation).
This decision concerned a public sector employer but the reasoning of the Court is equally applicable to private sector employers. This view is supported by the recent EAT decision of McFarlane v Relate Avon Ltd which concerned a claim by a relationship counsellor who refused to provide psycho-sexual counselling services to same sex couples on account of his Christian beliefs. He had signed up to Relate’s equal opportunities policy and, as a counsellor, was also bound the British Association for Sexual and Relationship Therapy Code of Ethics (BASRT Code). For broadly the same reasons as in the Ladele case, the EAT similarly found that Mr McFarlane had not suffered any discrimination; his employer had done no more than require him to carry out his duties in accordance with their equal opportunities policy and the BASRT Code. The EAT decided that Mr McFarlane was dismissed, not because of his religious beliefs, but because he had manifested his beliefs in a way that was contrary to his employer’s principles. He had not suffered indirect discrimination because his employer was justified in requiring him to perform counselling services to same sex couples. It was a legitimate aim for his employer to provide its services in accordance with its equal opportunities policy and the BASRT Code. Furthermore, because the aim was so fundamental to its ethos, there was no requirement for the employer to find other ways of achieving that legitimate aim (such as by using other counsellors to provide its services to same sex couples).
These cases highlight the need for you to ensure that you have an up to date equal opportunities policy which emphasises the importance to you of providing your services in a non-discriminatory manner. Having such a policy will be important evidence as to any legitimate aim in providing such a service and will assist you in defending any claim for discrimination on the ground of religion or belief where the provision of your services conflicts with an employee’s own personal beliefs. The EAT in McFarlane was also influenced by the fact that Relate was strongly committed to this policy and by the stance it pledged to maintain before the public. Likewise, evidence showing strong commitment to your equal opportunities policy will also be important.