Dignity for all?

Two judgments handed down at the end of December both relate, directly or indirectly, to sexual orientation discrimination. As it happens, neither of the claimants was gay.

In Stephen English v Thomas Sanderson [2008] EWCA 1421, first reported on ­solicitorsjournal.com on 22 December, the Court of Appeal held that it is discriminatory to subject a work colleague to mockery ­suggesting that he is homosexual, even when his tormentors know for a fact that he is straight. In London Borough of Islington v Ladele [2008] UKEAT 0453/08 (see SJ, 19 December 2008), the EAT considered what happens when there is a conflict between an organisation's commitment to gay rights and the rights of one of its employees who '“ as a matter of religious conviction '“ regard homosexuality as wrong.

Taking the Ladele case first, the claimant worked for the council as a registrar of births, deaths and marriages. As a committed Christian, she objected to having any involvement in the registering of civil partnerships. The council offered her a compromise, which would have limited her involvement to the signing process rather than the ceremony itself, but she rejected it. Some colleagues, including gay employees, objected to any exemption, pointing out that it was in breach of the council's own 'Dignity for All' policy and was at odds with its stated commitment to non-discrimination. As a result of her refusal, she was subjected to internal ­disciplinary proceedings and threatened with dismissal. At first instance, the claimant won her claims of direct and indirect ­religious discrimination. The EAT has now overturned that decision and held that there was no discrimination of any sort.

In many ways it is not surprising that the finding of direct discrimination should have been overturned. The Employment and Equality (Religion or Belief) Regulations 2003 ('RB Regs') protect employees against either direct or indirect discrimination in respect of their religion or belief; but direct discrimination can only be made out where the employee can show that she has been treated less favourably on grounds of religion. Here, the claimant's complaint was that she was not treated differently when she ought to have been.

Legitimate aim

The facts of this case were always going to sit more comfortably with a claim of indirect discrimination '“ that is, where treating everyone the same has a discriminatory impact on people belonging to a protected group. It was not in dispute that the council required all their registrars to perform civil partnership functions and that this placed people of the claimant's religion at a dis­advantage. The only live issue was whether the council could make out a defence of justification. The usual test applied: was the application of this requirement a proportionate means of achieving a legitimate aim?

The council said that its underlying aim was the promotion of the rights of the gay community and it was accepted by all '“ at least for the purposes of the proceedings '“ that this was a legitimate aim. But was it ­proportionate to insist on the claimant's ­performing civil partnership duties? The Employment Tribunal said it was not when, in practice, those duties could have been instead assigned to others who had no ­religious objections.

The EAT disagreed: the council was entitled not to allow the claimant to pick and choose what duties she would perform depending on whether they conformed with her religious views, at least in circumstances where those views were, themselves, discriminatory. They were entitled to take the view that to allow her to do so would be inconsistent with their strong commitment to the principles of non-discrimination and would send the wrong message both to staff and service users.

Had the conclusion been different, where could the line have been drawn? To take an example raised by counsel for Liberty ­(intervening), would a member of a ­fundamentalist American church that espoused white supremacy or antisemitism be entitled to refuse to perform mixed-race or Jewish marriages? Religious belief cannot be a 'solvent dissolving all the inconsistent legal obligations owed to the employer' (para.73).

Groups not protected by law

If the determining factor is that the service provider cannot be obliged to collude with conduct by one of its employees which involves unlawful discrimination, it raises the question: what if the claimant's religious objection was to a group not afforded ­protection under the law?

Had she refused to marry straight divorcees or straight couples with children born outside marriage, she may have been in a stronger position.

It is, of course, unlawful to discriminate on grounds of marital status (see s.3 of the Sex Discrimination Act 1975), but that does not preclude discrimination against unmarried people. In those circumstances, it is harder to see why her rights would not take ­precedence, provided the exemption was workable in practice.

In a sensitive judgment, EAT'ˆPresident Sir Patrick Elias takes pains to acknowledge the genuineness of the claimant's beliefs. However, in the ­concluding passage of his judgment, he is unequivocal in his view that, having regard to the ECHR jurisprudence, 'religious rights must be exercised in a way which is ­compatible with the rights and interests of ­others' (para.126) and 'must give way when it involves discriminating on grounds which parliament has provided to be unlawful' (para.127). This is an important and welcome statement of principle.

Although not deciding the point, the EAT leaves open the possibility that an organisation may be entitled to take a pragmatic approach in a situation such as this, by exempting a person from duties that conflict with their religious beliefs. The point is they are not obliged to do so.

Some of the press coverage has tried to portray this as another victory of the 'commissars of political correctness' over the views of the 'silent majority'. In fact, this is not a case where the rights of one group are being privileged over the rights of others. The EAT points up the true comparison at para.113 of its judgment: 'giving equal respect in this context would require that the council should also discipline gay registrars who refused to marry, say, certain Christian evangelicals because the registrars objected to their hostility to civil partnerships.'

Widely drawn regulations

The English case has surprised some people because, at first sight, its conclusion is counterintuitive, particularly if the assumption is that the Employment Equality (Sexual ­Orientation) Regulations 2003 ('the SO Regs') exist to protect people, straight or gay, on the grounds of their actual sexual orientation. It was already established that the SO Regs are drawn widely enough to cover cases where the discriminator acts as he does on a mistaken belief that a person is gay / straight, just as the equivalent provisions in the RB Regs are wide enough to cover discrimination based on a mistaken belief that a person is, say, a Christian or a Muslim.

But this case goes further. The claimant is straight and married with children. He alleged that work colleagues subjected him to mockery of the crudest sort ('faggot' etc.) based, astonishingly, on the simple fact that he had been to boarding school and lived in Brighton. However, they knew he was straight and he was aware of this at the time. The question of whether the SO Regs cover this situation was taken as a preliminary issue. The ET and the EAT found that they do not. The Court of Appeal have now held that they do.

The Framework Directive, which is the source of the SO Regs protects against harassment 'related to sexual orientation' but this is transposed into the SO Regs as 'on grounds of sexual orientation'. Much of the discussion in the EAT and the Court of Appeal centred on whether the latter imports a stricter test of causation, and the EAT took the view that the regulations do not properly implement the Directive. Similar points have already come up in relation to sex ­discrimination (dealt with by way of the SDA 1975 (Amendment) Regulations 2008) and disability discrimination (the ECJ judgment in Coleman v Attridge Law, see solicitorsjournal.com, 28 November 2008, and [2008] IRLR 722) and it is to be hoped that all these issues will be resolved once and for all by broadening the relevant tests in the forthcoming Equality Bill.

Robust approach

Lawrence Collins and Sedley LLJ, however, declined to be sidetracked by this question and took an admirably robust approach to the central issue, considering that the ­narrower test would be met in any event. 'The single critical assumed fact was that the appellant was repeatedly taunted as gay. In my judgment it did not matter whether he was gay or not '¦ the claimant was harassed because his fellow employees thought it was funny to taunt a man they knew to be heterosexual with being homosexual'¦ the claimant was being harassed on grounds of sexual orientation' (per Sedley LJ at paras.37-39).

Laws LJ, in a dissenting judgment dismissing the appeal, found that harassment was perpetrated on grounds of sexual orientation 'only where some person or persons' actual, perceived, or assumed sexual orientation gives rise to it, that is, is a substantial cause of it.' But surely, once it is accepted that at least part of the premise of the alleged 'humour' was the claimant's heterosexuality, then the necessary and direct causal link between his actual sexual orientation and the harassment is made out. It is difficult to see how his sexual orientation was 'in no sense whatsoever' (to adopt the language of the burden of proof provisions) part of the reason why he was treated as he was. The case will now be remitted to the Employment Tribunal to decide the substantive issues.

The judgment has been welcomed as an extension of an employee's right to be treated with dignity and respect at work. In some ways it is unfortunate that Mr English had to work so hard to bring himself under one of the protected grounds in order to enforce rights which ought to be enjoyed by all ­workers. As the law stands at present, ­however, people who are bullied at work for reasons which do not attract special ­protection under the law (for example, because of their ­physical characteristics, or out of jealousy or simple dislike) have to choose between staying put and seeking to resolve matters internally or, if they want to seek redress in the Tribunal system, ­resigning and claiming constructive dismissal, which is always a high-risk strategy. At present there is no sign of a more general anti-bullying provision on the horizon largely, I suspect, for fear of a flood of cases engulfing the Tribunal system.