McFarlane v Relate Avon Ltd: UKEAT/106/09: 30 November 2009

EAT: Underhill J (President), Ms V Branney and Mr G Lewis

The claimant, a Christian and a relationship counsellor employed by the respondent organisation, believed that it followed from Biblical teaching that sexual activity between couples of the same sex was sinful and that he should not endorse such activity. When the claimant enrolled on a psychosexual therapy course, he raised the possibility of his exemption from working with same-sex couples where specifically sexual issues were involved. The respondent made it clear that any such exemption would conflict with its equal opportunities and professional ethics policies, and when it subsequently doubted the claimant’s willingness to counsel same-sex couples on sexual issues it subjected him to a disciplinary hearing, following which he was dismissed on the ground that he had no intention of complying with the respondent’s policies. He made claims to an employment tribunal that, inter alia, he had been discriminated against directly and indirectly on the ground of his religious beliefs, contrary to regulation 3(1)(a) and (b) of the Employment Equality (Religion or Belief) Regulations 2003. The tribunal dismissed the claim of direct discrimination, finding that the reason the claimant was dismissed was not because of his Christian faith but because of his reluctance to provide psychosexual counselling to couples of the same sex and that he had been treated in the same way as would any non-Christian evincing such an unwillingness. The tribunal dismissed the claim of indirect discrimination on the ground that, while a requirement that counsellors should make their services available to couples of the same sex amounted to a “provision, criterion or practice” within regulation 3(1)(b) of the 2003 Regulations which was applied to the claimant and put persons of his religious belief at a particular disadvantage, it was a proportionate means of achieving the respondent’s aim to provide a full range of counselling to all sections of the community regardless of their sexual orientation.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) Whereas in some cases, where an employer objected to the manifestation of a person’s religious belief in their conduct, it might be impossible to see any basis for the objection other than an objection to the belief itself, in which case a claim by an employer to be acting on the ground of the employee’s conduct and not his religion might be regarded as a distinction without a difference, in other cases there would be a clear basis for differentiation and the fact that the employee’s motivation for his conduct was his wish to manifest his religious belief would not mean that the belief was the ground of the employer’s objection. The tribunal’s finding that the claimant was treated as he was, not because of his religious belief, but because of his unwillingness to provide psychosexual counselling to same sex couples, was conclusive against his claim of direct discrimination under regulation 3(1)(a) of the Employment Equality (Religion or Belief) Regulations 2003.
(2) It was accepted that, in insisting that the claimant should provide all its services without differentiation to same sex and heterosexual couples, the respondent discriminated against the claimant within the meaning of regulation 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 unless it could show justification. It was also accepted that the aim relied on by the respondent, namely the provision of a full range of counselling services to all sections of the community regardless of their sexual orientation, was legitimate. The essential question was not the practicability of accommodating the claimant but whether, as a matter of principle, the respondent could legitimately refuse to accommodate views which contradicted its fundamental declared principles, and it was justifiable for a body such as the respondent to require its employees to adhere to the principles which it regarded as fundamental to its ethos, even if to do so was in conflict with their religious beliefs, all the more so where observation of those principles was required of it by law.

The appeal was dismissed.

Appearances: Paul Diamond and Thomas Cordrey (Camerons) for the claimant; Keith Knight (Lyons Davidson, Bristol) for the respondent.