23 September 2019 - Article
Employers may find themselves confronted by groups of employees whose belief systems or characteristics are in conflict (either with each other or with those of the employer) and who are making demands of their employers that cannot easily be reconciled with the employer's obligations to its employees, or its business objectives. The classic example is the conflict between employees who believe on religious grounds that homosexuality is wrong and those who are homosexual, but other examples from recent cases include the Muslim worker in a supermarket who refused to touch bottles of alcohol; the Christian pharmacist who refused to fill prescriptions for birth control pills; the social worker who insisted on foisting his religious beliefs on the users of his employer's services and the Christian bus driver who refused to drive a bus bearing (on behalf of the Atheist Bus Campaign) the slogan “There's probably no God. Now stop worrying and go and enjoy your life”.
One particular predicament for the employer was illustrated in the well-publicised case of London Borough of Islington v Ladele. Ms Ladele was one of the Council's Registrars of Births, Deaths and Marriages. Due to her strong Christian beliefs, she refused to participate in registering civil partnerships. At first, this was addressed by managing the rosters to allow Ms Ladele to avoid any work involving civil partnerships. This led to tensions within the department, and eventually two gay colleagues complained that Ms Ladele's refusal was an act of homophobia and a breach of the Council's “Dignity for All” policy. This policy articulated the council's aim to “treat all members of the community and other employees fairly and equally” – regardless of (amongst other factors) their sexuality, or their religion. Disciplinary action was taken against Ms Ladele for non-compliance with this policy. She subsequently brought claims for direct and indirect discrimination and harassment by reason of her religious belief, which were upheld by the Tribunal.
On appeal, however, the EAT overruled the Tribunal on all grounds, finding that there had been no unlawful religious discrimination against Ms Ladele. The EAT found that Ms Ladele's complaint was not that she had been treated differently from others, but rather that she was not treated differently – and ought to have been. This was not a case, according to the EAT, of an individual being discriminated against because of their “difference”, but really about a failure to accommodate that difference. Importantly for employers, the judgment said, “It cannot constitute direct discrimination to treat all employees in precisely the same way.”
However, the question of indirect discrimination and whether the Council could objectively justify its actions remained. In this case the Council had legitimate aims in providing effective services relating to civil partnerships and promoting equal opportunities. Was the means the Council chose to promote those aims, namely its insistence that all registrars undertook the full range registration duties, proportionate? The EAT said that it was. The Council was aiming to act in a non-discriminatory way towards its employees and the wider community. Allowing Ms Ladele to choose not to carry out civil partnership ceremonies would have amounted to endorsing discriminatory conduct on her part. It was not unlawful for the Council to refuse to do that. This part of the decision could be regarded as controversial and Ms Ladele intends to appeal. However the judgment did hint that it would be a pity if pragmatic ways of accommodating religious beliefs could not be found and the EAT was not prepared to say that the only lawful way in which the Council could have acted would have been to refuse to accommodate Ms Ladele.
What does this mean for employers?
This case and others on similar issues, encourage employers to separate the employee's belief from the employee's conduct in manifesting that belief. Put simply, if the employee's belief is causing him or her to act contrary to the employer's legitimate instructions or policies, then action against that conduct will not be direct discrimination, because the reason for the action will be the employee's conduct, not the belief itself.
PCPs that have an adverse impact on a member of a religious group are more problematic, particularly where the employee's objections appear to involve discrimination against another group. Moreover, as the beliefs involved are often very strongly held, employees may be more inclined to litigate.
The Ladele case illustrates very clearly that as the legal framework does not make any protected right any more important than another, conflicts can be extremely difficult to reconcile without one employee feeling that his or her rights have been 'trumped'. For an employer caught in the middle of such a dispute a very fine line will have to be trodden and it may be impossible to satisfy everyone involved. However, one lesson arising from the Ladele case is that the situation was probably inflamed at an early stage by the way in which it was managed and by the Council creating the impression in Ms Ladele's mind that it was not taking her religious beliefs seriously. Had it approached the problem differently and in a way that was apparently more sensitive to the strongly held views on both sides, a pragmatic solution might have been achievable.