A higher power

Following the first papal visit to Britain in more than 28 years, the discussion of what place religious freedoms have in the law of this country has been pushed to the top ofthe agenda.

Bidding farewell to Pope Benedict XVI, David Cameron said: 'Faith is part of the fabric of our country. It always has been and it always will be'¦ faith is not a problem for legislators to solve but rather a vital part of our national conversation.'

While Mr Cameron may not view religious freedoms as a problem for legislators, further collisions are on the horizon '“ between religious groups and the rights of the gay community '“ which are likely to lead to further litigation. It is a shame that the new Equality Act 2010, which seeks to harmonise all strands of discrimination, does not resolve this tension.

Many religious groups consider homosexuality to be a sin, including the Catholic Church. It is clear the expression of such views in the workplace could lead to complaints of direct discrimination and harassment, for which an employer could be held vicariously liable. However, there remains a risk of legal claims for employers who seek to prevent employees from expressing their beliefs.

The current rules governing this area come from the Equal Treatment Framework Directive, the EU's general framework for equality in the workplace, implemented in the UK in the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003, but current case law has only just touched the surface of a serious chasm underlying discrimination in the workplace.

The inevitable clash

In the case of Ladele v London Borough of Islington [2009] EWCA Civ 1357, a council registrar was fired for gross misconduct after refusing to grant civil partnerships on the grounds that same-sex marriage was contrary to God's law. Ms Ladele brought claims for direct and indirect discrimination on the grounds of her religious beliefs as well as harassment. But the claim failed after the Court of Appeal upheld the Employment Appeal Tribunal's decision that Ms Ladele had not been discriminated against because she was fired for refusing to comply with a reasonable management request '“ not for her religious belief.

Her indirect discrimination claim also failed on appeal because the Employment Appeal Tribunal held that the council's actions could be objectively justified. It was held that the council had a legitimate aim '“ namely the provision of a non-discriminatory service which involved all registrars being required to perform the full range of civil partnership services '“ and that it had acted proportionately.

A similar decision was reached by the Court of Appeal in McFarlane v Relate Avon Limited [2010] EWCA Civ B1. Mr McFarlane, a counsellor for Relate, refused to provide relationship counselling to same-sex couples on the basis that same-sex sexual activity was sinful. As a result, Mr McFarlane was dismissed for failing to comply witha management request to provide same-sex couples with relationship counselling.

Lord Carey, the former Archbishop of Canterbury, submitted a witness statement in support of Mr McFarlane's appeal stating that the case held important issues for the 'direction of the United Kingdom' and whether it was going to be a secular state or a neutral state. Mr Carey said that the use of words such as 'discriminatory' in reference to Christian beliefs on same-sex sexual activity was crude and advocated that a specialist panel of judges, with proven sensitivity and understanding of religious issues, should be convened to deal with such cases.

This suggestion was roundly rejected by the Court of Appeal on the basis that all judges were equipped to decide the law justly and fairly and such a request was 'deeply inimitable to the public interest'.

However, many religious groups are likely to assert, having regard to these cases, that the rights of the gay community are afforded greater protection than those of religious groups.

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