McFarlane v Relate Avon Ltd

Indirect discrimination is concerned with the discriminatory effects or outcomes of a provision, criterion or practice, rather than the actor’s motive. A practice may nevertheless be lawful where the statutory justification test is satisfied and it is a proportionate means of achieving a legitimate aim.

An employer may require staff to perform the full range of duties needed to deliver services on a non-discriminatory basis, even where an employee objects on religious grounds. The law protects the right to hold and express religious belief, but does not protect the substantive content of a belief solely because it is religious. Where binding authority applies, no further marginal balancing exercise is required if accommodating the objection would undermine the employer’s legitimate policy.

The appellant, a paid relationship counsellor, sought exemption from providing psycho-sexual therapy to same-sex couples because of his Christian beliefs. His employer refused the exemption and dismissed him after concluding that he would not comply with its equal opportunities and professional ethics policies.

The Employment Tribunal rejected his claims of unfair dismissal and religious discrimination. The Employment Appeal Tribunal dismissed his appeal on 30 November 2009. The appellant renewed an application for permission to appeal, arguing that the EAT and the Court of Appeal decision in London Borough of Islington v Ladele [2009] EWCA Civil 1357 had failed to conduct the required proportionality exercise and had been decided per incuriam. The central issue was whether Ladele could be distinguished or reconsidered.

Application refused. The renewed application for permission to appeal was dismissed. The appellant’s argument was closed by the Court of Appeal’s binding decision in London Borough of Islington v Ladele [2009] EWCA Civil 1357, reported at [2010] IRLR 211.

1. Indirect discrimination. Under paragraph 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003, the relevant question concerned the discriminatory effect or outcome of the employer’s practice, not its motive. The employer had to show that its insistence on compliance with its policies was a proportionate means of achieving a legitimate aim.
2. Legitimate policy. The provision of a full range of counselling services to all sections of the community without discrimination on grounds of sexual orientation was a legitimate aim. Requiring an employee to perform the full range of duties could be proportionate where allowing an exemption would undermine that aim. There was no scope for a further marginal balancing exercise in circumstances materially indistinguishable from Ladele.
3. Per incuriam argument. Ladele was not inconsistent with R (Williamson) v SSHD [2003] QB 1300 or Copsey v WWB Minerals Ltd [2005] IRLR 811. Those authorities therefore could not support the contention that Ladele had been decided per incuriam.
4. Religious freedom. For completeness, the court explained that common law and Article 9 protect the right to hold and express religious beliefs, but do not protect the substantive content of those beliefs solely because they are religious. Legal protection for a corresponding social or moral position must rest on its objective merits. These observations addressed the wider arguments and were not necessary to the short conclusion based on Ladele.

Order: application refused.

• Court of Appeal (Civil Division): On 29 April 2010, the court refused the renewed application for permission to appeal. An earlier paper application for permission had been refused by Elias LJ on 20 January 2010. [2010] EWCA Civ 880
• Employment Appeal Tribunal: Underhill J dismissed the appellant’s appeal on 30 November 2009.
• Employment Tribunal: The tribunal rejected the claims of unfair dismissal and religious discrimination. The harassment claim was also dismissed, and the wrongful dismissal claim proceeded on a concession which was immaterial to the application.