Christian Relate counsellor case: the decision

Today the Court of Appeal refused permission to Mr McFarlane to appeal against the decision of the Employment Appeal Tribunal given on 30 November 2009.  Mr McFarlane’s case arose from his dismissal when he declined to fully commit to providing psycho-sexual counselling to same sex couples, on a basis that this conflicted with his Christian beliefs. 

Rachel Dineley, Employment Partner and Head of the Diversity and Discrimination Unit at Beachcroft, commented: 

“This is a helpful judgment, in getting to the heart of the issue. That is, the distinction to be drawn between how the law protects an individual’s right to hold and express a belief on the one hand, and the law’s protection of that belief’s substance or content. 

"The law cannot give force to what may be regarded as 'subjective opinion' or a 'particular substantive moral position' only on the ground that it is espoused by adherents of a particular faith.  Such a belief lies only in the heart of the believer, who is alone bound by it.  No one else is or can be bound by it save as a matter of free choice.  This is the fundamental issue in cases such as Ladele and McFarlane. 

"As observed by Lord Justice Laws, we do not live in a society where the people share uniform religious beliefs.  No belief system can prevail in the general law over any other.  The challenge for employers, in practice, is to strike a balance where no individual or group is preferred in contrast to or in conflict with any other.  In many instances sensitivity and open discussion in consultation will lead to an agreement as to how a religious preference can be accommodated.  However, it is clear that employers are entitled to require employees to adhere fully to their policies and procedures designed to ensure equality and diversity for all in the workplace, as well as those to whom they provide any service.

"Looking at this from a human rights point of view, the Court made clear that “in a free constitution such as ours, there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content.  The common law and article 9 of the European Convention on Human Rights offer vigorous protection of a Christian’s (and every other person’s right) to hold and express his or her beliefs.  And so they should.  By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts.  These are two conditions of a free society”.

In the Employment Tribunal Mr McFarlane's claims for direct and indirect discrimination failed, and they were subsequently also rejected by the EAT.  Lord Justice Laws has today upheld the line of authority established where religious beliefs, manifested in the workplace, conflict with the requirements of the employer to provide a service on a non-discriminatory basis.  He confirmed the approach taken by the EAT and Court of Appeal in London Borough of Islington v. Ladele, in rejecting claims on the part of Miss Ladele, a Registrar, that the action taken against her by the Council was motivated by her religious belief, rather than by the fact that she refused to officiate at civil partnership ceremonies, on the grounds of her Christian beliefs.

Lord Carey, the former Archbishop of Canterbury, gave a witness statement in support of Mr McFarlane’s claim, seeking to compare the treatment that should be accorded to someone with religious views in contrast to a 'bigot' i.e. a person with an irrational dislike of homosexuals, making the point that Christian views are “worthy of respect in a democratic society”.  Lord Justice Laws said these observations were misplaced.  The Courts have not equated Christian views on homosexuality with homophobia or likened Christians to bigots.  He makes clear that in cases of indirect discrimination, the law forbids discriminatory conduct not by reference to the actor’s motives but by reference to the outcome of his or her acts or omissions.  It does not follow that if conduct is accepted as discriminatory it falls to be condemned as disreputable or bigoted.