Sexual orientation and religion: Clash of the discrimination strands

In London Borough of Islington v Ladele, a Christian marriage registrar unsuccessfully claimed that she had been subjected to religious discrimination when she was disciplined for refusing to conduct civil partnerships. Consultant editor Darren Newman asks if the Employment Appeal Tribunal (EAT) was correct in its approach to the issue of indirect religious discrimination in these circumstances.

Does religious discrimination work differently from the other discrimination strands? That's the question that springs to mind following the case of London Borough of Islington v Ladele EAT/0453/08. The EAT has held that the council was entitled to discipline a registrar of births, deaths and marriages whose religious beliefs led her to refuse to conduct civil partnerships. Although the requirement to carry out civil partnership duties was capable of amounting to indirect discrimination, the EAT held that it was justified as a proportionate means of achieving a legitimate aim.

What strikes me as different about the EAT's approach in this case, compared with that in, say, a typical case of indirect sex discrimination, is that the decision focused not on the practical impact on the employer of accommodating the employee's needs, but on the principle that the employee should not be allowed to make an objection - even one based on religious faith - that was itself discriminatory in nature.

This is an argument that doesn't crop up in the other strands. Sex, race, age, sexual orientation and disability are essentially objective matters of identity. They are not about subjective opinion or about how the individual relates to others. However, the law, in the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), applies the same model of discrimination to protect someone's opinion as it does his or her identity. This raises the question of what to do when an opinion conflicts with the rights granted under the other discrimination strands.

It is clear that individuals' religious beliefs do not entitle them to discriminate on an unlawful ground against somebody else. If a manager refused to promote a female employee because of a religious belief about the role of women, this would amount to direct sex discrimination. The employer could not tolerate that. Any indirect discrimination that arose as a result of preventing the manager from acting on his or her religious beliefs in this way would be justified: not because sex discrimination "trumps" religious discrimination, but because there is no justification defence to direct sex discrimination and the employer is required to take steps to prevent it from occurring.

Ladele is, however, different. Although much was made of the fact that Ms Ladele's refusal to deal with civil partnerships was discriminatory, it is not at all clear that her actions would actually have led to any unlawful discrimination. It was accepted that it would be possible to accommodate her beliefs without affecting the service provided by the council. Neither is there any suggestion that Ms Ladele conducted herself improperly towards any of her colleagues. She simply refused to participate in an activity that contradicted her religious beliefs. Accommodating her needs would not have resulted in any discrimination against anyone else. However, the EAT held that her stance was "inconsistent with the non-discriminatory [objective that] the council thought it important to espouse both to its staff and [to] the wider community". It added: "It would necessarily undermine the council's clear commitment to that objective if it were to connive in allowing the claimant to manifest her belief by refusing to do civil partnership duties."

The problem with this analysis is that the council has just as much a duty to avoid religious discrimination as it does to avoid discrimination based on sexual orientation. There is little acknowledgement from the EAT that putting people with Ms Ladele's religious views at a disadvantage is something that the council should seek to avoid. The EAT rejects explicitly the notion that it is a "matter of giving equal respect to the religious rights of the claimant and the rights of the gay community". Rather the issue is whether or not, "given the legitimate aim, the means adopted by the council to achieve that aim were proportional". Surely, however, in judging whether or not the council's actions were proportional, it is appropriate to require some balance between the impact of the measure on people with Ms Ladele's religious belief and the impact of accommodating her belief on the council's commitment to equality?

This is a difficult case, but I do think that the EAT has approached the matter in the wrong way and has failed to give due weight to the desirability of avoiding practices that subject people with particular beliefs to a disadvantage. We all have our personal opinions about the beliefs of others, but there is nothing in the discrimination legislation to suggest that one strand of discrimination is more important than another. This may lead to results with which individuals feel uncomfortable, but discrimination law has never been easy.

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