Procedural Posture

The appellant brought a case to the Employment Tribunal alleging workplace discrimination based on religious views. The Employment Tribunal concluded that the government had harassed, and both directly and indirectly discriminated against the appellant under the Employment Equality (Religion or Belief) Regulations. The Employment Appeal Tribunal reversed that decision, holding that the Religion Regulations had not been breached, and agreeing with the respondent, the London Borough of Islington, that it could not have acted any differently under the Equality Act (Sexual Orientation) Regulations. The appellant appealed, seeking the restoration of the Employment Tribunal decision on indirect harassment and discrimination, and seeking to have remanded to the Tribunal some of the factual allegations on direct harassment.

Facts

The appellant was a registrar of Births, Marriages, and Deaths. When the Civil Partnership Act of 2004 came into force all registrars were informed that they would assume civil partnership duties. The appellant, a Catholic who did not believe her faith allowed her to take “an active part in enabling same-sex unions to be formed”, informed her supervisors that she would not officiate at civil partnerships. The appellant then made informal arrangements to swap her civil partnership duties with other registrars.

In March 2006, the plaintiff was reported to the head of Islington’s Democratic Services (IDS) by co-workers who felt victimised by her refusal to perform civil unions. Despite threats of formal disciplinary action for violation of Islington’s “Dignity for All” non-discrimination policy, and the suggestion of a temporary compromise, the appellant continued to refuse to officiate at civil partnerships and to swap duties with co-workers. Another complaint by co-workers called her refusal an “act of homophobia”. The head of IDS responded to the complainants with a letter containing personal information about the appellant in direct contradiction of Islington policy. The appellant accused the head of IDS of unfair treatment, and in response, the head of IDS explained that, under the Equality Act (Sexual Orientation) Regulations, the appellant’s views would not be accommodated. The appellant’s complaint of unfair treatment did not appear to have been investigated.

Disciplinary proceedings were instigated, wherein the appellant stated that her acts were non-discriminatory and asked for her religion to be taken into account. The investigator found that, while civil partnership duties were not originally part of the job description, the appellant’s refusal to perform her duties, solely because of the sexual orientation of clients, was grounds for a formal disciplinary proceeding. At the proceeding, she was told that she would need to perform civil union duties or face termination and that her behaviour had prevented her from being considered for a supervisory position. The appellant filed a claim at the Employment Tribunal.

Issue

Whether the government could require an employee of the office that registers births, marriages and deaths to register same-sex civil partnerships despite her objections on the grounds of religious beliefs.

Domestic Law

Employment Equality (Religion or Belief) Regulations 2003.

Equality Act (Sexual Orientation) Regulations 2007 Regulation 3 (discrimination on the basis of sexual orientation) and Regulation 4 (discrimination in the provision of goods and services).

Civil Partnership Act 2004.

R (SB) v. Governors of Denbigh High School, House of Lords, United Kingdom, 2006 (affirming that “Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing”).

Comparative Law

Christian Education South Africa v. Minister of Education, Constitutional Court of South Africa, 2000 (holding that where the State had banned corporal punishment in school, everyone had to comply, even Christian educators who believed there was an obligation to punish. There was no automatic right for believers to be exempt from the law. However, if possible, the State should “seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law”).

International Law

European Convention on Human Rights, Article 8 (right to respect for private and family life), and Article 9 (freedom of thought, conscience and religion).

EU Council Directive 2000/78 EC of 27 November 2000, Article 2(2) (direct and indirect discrimination) and Article 2(5) (establishing that domestic legislation should be read in conformity with Article 9 of the European Convention).

Campbell and Cosans v. United Kingdom, ECtHR, 1982 (holding that the European Convention protects only those beliefs that are “worthy of respect in a democratic society and are not incompatible with human dignity”).

Pichon and Sajous v. France, ECtHR, 2001 (“the main sphere protected by Article 9 of the European Convention is that of personal convictions and religious beliefs”, although it “also protects acts that are closely linked to those matters such as acts of worship or devotion forming part of the practice of a religion or a belief”).

Salguerio da Silva Mouta v. Portugal, ECtHR, 1999 (holding that sexual orientation was covered by Article 14 of the European Convention).

EB v. France, ECtHR, 2008 (holding that, “where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8”).

Reasoning of the Court

First the Court examined the decisions of the Employment Tribunal and the Employment Appeals Tribunal. The Court stated that the Employment Tribunal’s finding of discrimination and harassment against the appellant was unsustainable because the complaint did not allege a difference in treatment. Rather, the Court stated, the appellant’s argument was that she should have been treated differently and was not. The complaint was “about a failure to accommodate her difference, rather than a complaint that she was being discriminated against because of that difference”. The Employment Appeals Tribunal had reversed the original judgment because the Employment Tribunal’s ruled that discrimination against the appellant had occurred but did not say whether that discrimination was permissible. Further, despite factual misconduct by the respondent, there was no evidence that the acts referenced in the complaint were based on the appellant’s religious beliefs.

The Court agreed with the Employment Appeals Tribunal and held that any alleged discrimination suffered by the appellant was due to her refusal to officiate over civil partnerships rather than her religion. Had the appellant agreed to fulfil the duties of the job or agreed to move to another department, there would have been no further conflict.

The respondent’s aim was to make sure that work was done practically and fairly as well as to ensure a discrimination-free environment. The Court held that requiring the appellant to officiate same-sex civil partnerships was not about her personal beliefs, but about the internal and external functioning of the office in enforcing a policy of anti-discrimination. Since the appellant was in a public service job, it was not discriminatory to requiring her to perform a secular task not related to the core of her religion.

The Court next discussed Article 9 of the European Convention on Human Rights. The Convention stated that everyone had the right to freedom of religion, but that this freedom was subject to limits prescribed by law, which were necessary for a democratic society. The Court referred to several European Court cases, including Pichon and Sajous v. France, where it was held that a pharmacist who refused to sell contraceptives because of his religious beliefs was not protected by Article 9, since the pharmacy was the only place to obtain contraceptives and pharmacists could manifest their beliefs outside the professional sphere. The Court also discussed Salguerio da Silva Mouta v. Portugal and E.B. v. France, which demonstrated the importance of equal treatment regardless of sexual orientation. Finally, the Court quoted Christian Education South Africa v. Minister of Education, which held that a ban on corporal punishment must be enforced, even in Christian schools that believed in a teacher’s right and obligation to punish students physically.

The Court found that the 2007 Equality Act (Sexual Orientation) Regulations gave no room to the respondent to behave other than it had in relation to the appellant. The appellant had refused to perform same-sex civil unions but had agreed to perform marriages. According to the Court, this was discrimination in violation the Equality Act (Sexual Orientation) Regulations, because civil unions and marriages were substantially similar. Where public authorities exercised a public service function, they could not discriminate. As the employer, the respondent would be held responsible for the appellant’s unlawful acts. Furthermore, the Court found that the prohibition against discrimination on the basis of sexual orientation overrode any right based on religious belief to practice such discrimination.

Sexual orientation discrimination was only allowed when it pertained “to the membership and operation of organisations relating to religion or belief, which plainly do not cover performing civil partnership unions, which is self-evidently a secular activity carried out in a public sphere under the auspices of a public, secular body”. Therefore, the appellant had no religious or belief-based right to refuse to perform civil partnerships.

The Court held that where the legislature decided that discrimination regarding goods, facilities, and services on the grounds of sexual orientation was subject to very limited exceptions, refusal of a State official to perform the duties guaranteed and designated as part of the official job was not permissible. The decision of the Employment Appeals Tribunal was upheld.

Ladele v. Borough of Islington, Court of Appeal, Civil Division, United Kingdom (full text of judgment, PDF)