At a glance
- An employer’s commitment to an equal rights or opportunities policy can, in some cases, justify discriminatory treatment.
- Mr McFarlane was not unfairly dismissed or discriminated against on grounds of religion or belief after he was dismissed for refusing to provide counselling to same-sex couples.
Background
Mr McFarlane is a Christian. He believes that it follows from Biblical teaching that same-sex sexual activity is sinful and that he should do nothing which endorses such activity.
Mr McFarlane was employed as a counsellor by Relate Avon Ltd (Relate) from 2003. Relate provides counselling services to both same-sex couples and heterosexual couples. Mr McFarlane had signed up to Relate’s equal opportunities policy, which stated that no person should receive less favourable treatment on the basis of personal or group characteristics. Mr McFarlane also had to ensure he followed the British Association for Sexual and Relationship Therapy’s Code of Ethics which provided that therapists needed to be aware of their own prejudices and avoid discrimination.
In 2006 Mr McFarlane said he wanted to undertake a diploma in psycho-sexual therapy (PST). Around this time Mr McFarlane raised the possibility of being exempted from any obligation to work with same-sex couples where sexual issues were involved. Relate wrote to McFarlane making clear that any such stance would conflict with Relate’s equal opportunities policy and requested that Mr McFarlane continue to counsel same-sex couples in both relationship counselling and PST. Mr McFarlane responded, insisting that his only difficulty was about offering PST as opposed to couples counselling. Relate regarded that as a refusal to confirm he would undertake PST work with same-sex couples and initiated disciplinary proceedings. On conclusion of the disciplinary proceedings, he was summarily dismissed for gross misconduct, with Relate also concluding that Mr McFarlane could not be trusted to perform his role in compliance with the equal opportunities policy.
Mr McFarlane brought claims of direct discrimination, indirect discrimination and harassment on the ground of religion or belief, and unfair and wrongful dismissal.
The outcome
The ET dismissed all the claims apart from wrongful dismissal (which had already been conceded in Relate’s evidence).
The ET found that Mr McFarlane had not suffered direct discrimination; the reason for his treatment was not because of his Christian faith but because of his unwillingness to provide PST counselling to same-sex couples, thus he was treated in the same way as any non-Christian who showed such an unwillingness. The EAT upheld the ET’s decision on this point, finding Mr McFarlane was dismissed because of his conduct, not because of his religious belief.
It was common ground before the Tribunal that Relate had a PCP whereby counsellors were required conform to its equal opportunities policy and the Code and in particular that they should make their services available without differentiation to same-sex and heterosexual couples, which was potentially indirectly discriminatory. However, it could be objectively justified as a proportionate means of achieving their legitimate aim of providing a full range of counselling services to all sections of a community regardless, among other things, of sexual orientation. Therefore, the appeal on the question of indirect discrimination failed.
The EAT also agreed with the ET that the dismissal was fair.
Mr McFarlane requested for permission to appeal to the Court of Appeal but this was refused. He didn’t stop there, however, and took his case to the European Court of Human Rights along with three other claimants in Eweida and others v United Kingdom. The European Court of Human Rights upheld the decision of the ET and Employment Appeal Tribunal, stating that employers can refuse to accommodate demonstrations of religious beliefs, as per McFarlane’s actions, if they are discriminatory against others. The refusal of the ET did not give rise to a breach of article of the European Convention on Human rights, ‘Everyone has the right to freedom of thought, conscience and religion’.
“The tribunal’s conclusion that it was reasonable for [Relate] to dismiss an employee who was equivocal about his willingness to conform to principles which it regarded as of fundamental importance was one to which it was entitled to come.”.
What does this mean for employers?
As all the cases in this area show, employers need to exercise caution when handling situations involving conflicting protected characteristics. However, while religion or belief is a protected characteristic under the Equality Act 2010, an employee cannot simply rely on their religion or belief to exempt them from doing parts of their role, particularly where their conduct is contrary to the employer’s equal opportunities policy. In that regard, the case also serves as a reminder of the importance of having a clear equal opportunities policy in place.