There appears to be a fundamental conflict between two of the protected characteristics, religion or belief on the one hand and sexual orientation on the other. Discuss the ways in which parliament, the courts and tribunals have attempted to resolve this conflict through legislation and case law. In your opinion, have they managed to provide equivalent protection to the two characteristics? Give reasons for your answer.
Completed as an essay for my Employment Law module, February 2013.
The Equality Act 2010 provides a number of protected characteristics (at s. 4) including sexual orientation, and religion or belief. Sexual orientation is defined in s. 12(1) as:
a person’s sexual orientation towards —
(a) persons of the same sex,
(b) persons of the opposite sex, or
(c) persons of either sex.
Religion and belief are defined in s. 10(1) and s. 10(2):
(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.
(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
The inclusion of these characteristics allows protection of a person from discrimination (either directly or indirectly) due to religion and belief, or sexual orientation. However, there is a fundamental conflict between the two as members of some religions feel that same-sex relationships are in conflict with their beliefs.
Since protection against discrimination due to sexual orientation was enshrined in law in the Employment Equality (Sexual Orientation) Regulations 2003, this has included exemptions for organised religions. Regulation 7 stated that the Regulations do not apply where employment is for purposes of an organised religion, and the employer can apply a requirement that an employee is of a particular sexual orientation either to ‘comply with the doctrines of the religion’ or ‘to avoid conflicting with the strongly held religious convictions of … the religion’s followers’.
In the case of R (Amicus) v. Secretary of State for Trade and Industry1, Richards J considered this in light of EU Directive 2000/78 (the ‘Employment Equality Framework Directive’) and Articles 8 and 14 of the European Convention on Human Rights (ECHR), and held that the provisions were adequate as long as they were given a narrow construction as stated in the Regulations.
Although this may appear at first glance to be unequal protection between the two rights, it has been recognised by Parliament in the writing of the Regulations (and subsequent legislation) that such an exemption is required to allow the continued functioning of organised religions in the UK.
The Equality Act 2006 consolidated previous legislation, establishing the Commission for Equality and Human Rights, and prohibiting discrimination on the grounds of both religion and belief and sexual orientation. The latter part of the Act was enacted in the Equality Act (Sexual Orientation) Regulations 2007.
The Equality Act 2010 aimed to codify previous Acts and Regulations, and superseded employment-specific legislation including the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003. Aware of the conflict arising between the two areas and the strong views on the organised religion exemption, in 2010 the Government Equalities Office stated2:
The Equality Bill will not change the existing legal position regarding churches and employment. It clarifies the existing law to ensure a balance is maintained between the rights of people to manifest their religion and the right of employees not to be discriminated against because of a protected characteristic such as sexual orientation.
Schedule 23(1) of the Act follows the provision set out in the 2003 Regulations of providing exemption to organised religions. However, there is no provision in the Act for a conflict between religion or belief and sexual orientation outside the employment setting of an organised religion. Such a conflict arose in two cases.
The first, Ladele v. London Borough of Islington, concerned Ms Ladele, a Registrar who refused to perform civil partnership ceremonies due to her Christian beliefs. The Employment Tribunal decision was overturned at appeal; the EAT found3 that there had been no discrimination against Ms Ladele.
On appeal to the Court of Appeal, Lord Neuberger MR considered Article 9 ECHR, and (at ) referred to Lord Hoffman’s judgment at  in R (SB) v. Governors of Denbigh High School4, ‘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.’
Lord Neuberger MR further stated at : ‘[h]owever much sympathy one may have … with Ms Ladele … the legislature has decided that requirements of a modern liberal democracy … include outlawing discrimination … on grounds of sexual orientation, subject only to very limited exceptions.’ The Court dismissed the appeal, finding (at ) that the prohibition of discrimination in the Equality Act (Sexual Orientation) Regulations 2007 ‘takes precedence over any right which a person would otherwise have by virtue of his or her religious belief or faith, to practice discrimination on the ground of sexual orientation.’
The second case concerned Mr McFarlane, a Christian employed to provide relationship counselling services, who refused to provide psycho-sexual therapy to same-sex couples. Disciplinary procedures were brought against him and he was dismissed. In the Employment Tribunal, he argued that he had been discriminated against with regard to Article 9 ECHR. The EAT dismissed his appeal5.
The Court of Appeal, in a judgment by Laws LJ6, held that they were bound by their decision in Ladele and the case could not be distinguished. In the most senior Court in England and Wales, the interpretation of the Equality Act(s) was that discrimination on the basis of religion or belief against someone due to their sexual orientation could not be sanctioned in law, aside from the specific case of organised religions already considered.
Both Ladele and McFarlane appealed to the European Court of Human Rights (ECtHR). Dismissing the appeal in Ladele, the judgment stated that the relevant comparator was a Registrar with no religious objection to same-sex unions, and that in attempting to achieve its aims, the local authority acted proportionately in pursuit of a legitimate aim.
Dismissing the appeal in McFarlane, at , the Court stated:
The [2003 and 2007] Regulations struck a balance … between the right to manifest religious beliefs and the rights of individuals not to be discriminated against on grounds of sexual orientation. It was a matter falling within the margin of appreciation … under Article 9 exactly how that balance should be struck.
And at :
… for the Court the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination.
When considering whether the characteristics of religion and belief and sexual orientation have equivalent protection, it is first important to take into account the scope of the protection provided. The protection afforded to religion and belief as a protected characteristic is wide-ranging: following a body of case law, it includes lack of any belief, a wide range of belief systems (for example, spiritualism7), and philosophical belief (such as climate change)8. Through various statutes culminating in the Equality Act 2010, Parliament have been careful to ensure that the exemption against discrimination on the grounds of sexual orientation for organised religions has been protected. This appears to provide unequal protection between the two characteristics – it could be argued that organised religions have been given protection at the expense of the protection for sexual orientation. However, it has been decided (per Amicus) that this is lawful, as long as the exemption is not abused.
The decisions in McFarlane and Ladele should be considered alongside the jointly heard cases of Eweida, a British Airways employee found to be discriminated against due to her employer’s refusal to allow her to wear a visible cross as a symbol of her faith, and Chaplin, a nurse who was restricted from wearing a visible cross on health and safety grounds. The decision in Eweida shows that where the manifestation of religious belief does not cause a health and safety issue (as in Chaplin) or does not discriminate against others, as in McFarlane and Ladele, it should be protected. The decision in Eweida adds further strength to the protection awarded on the basis of religion or belief.
Conversely, the ECtHR upheld the decisions of the British courts in the cases of McFarlane and Ladele. It is apparent that the Courts decided the characteristics of religion or belief and sexual orientation (and by inference other characteristics) should be given equal protection – with the simple caveat that people with one characteristic cannot act in a discriminatory way towards the other.
The decisions of both the British courts and the ECtHR seems to be based on a fair principle – where one person, possessing a protected characteristic, discriminates against another, the discriminator cannot use their own protected characteristic as a defence. Per the comments of Lord Neuberger MR in Ladele, in a ‘modern liberal democracy [aiming to outlaw discrimination]’, the aim should be to promote equality between protected characteristics by outlawing discrimination, whatever the reason for it in the first place.
If the British courts or the ECtHR had made the opposite decision in Ladele and McFarlene, that would have been unequal protection by placing religion or belief on a higher pedestal than sexual orientation. The decisions in these cases are a further welcome move towards equal protection being afforded to the two characteristics, as Parliament expressed an intention to do with the passing of the Equality Act 2010 and the preceding legislation.
- Doyle, B., Casserley, C., Cheetham, S., Gay, V., Hyams, O (2010), Equality and Discrimination: The New Law, Jordans Publishing Limited, Bristol.
- MYTH-Busting: the Equality Bill and Religion, undated, Government Equalities Office
- IDS (2010), The Equality Act 2010: Employment Law Guide, Incomes Data Services Limited, London.
- Wadham, J., Robinson, A., Ruebain, D., Uppal, S. (Eds.) (2012), Blackstone’s Guide to The Equality Act 2010, Second Edition, Oxford University Press, Oxford.
- Why are four Christians accusing their employees of discrimination?, 4th September 2012, BBC News