No appeal hearing for Christian counsellor over same-sex couple beliefs

McFarlane v Relate Avon Ltd 29 April 2010 CA

religious discrimination | refusal to counsel same-sex couples

The Court of Appeal has refused an application against an Employment Appeal Tribunal (EAT) decision that a counsellor who was dismissed after he refused to give advice to same-sex couples was not discriminated against because of his religious beliefs. In doing so, the Court of Appeal rejected former Archbishop of Canterbury Lord Carey's call for a specialist panel of judges to hear cases involving religious rights. 

Mr McFarlane, who worked at counselling service Relate Avon Ltd, trained to be a psychosexual therapist and his role was extended to giving advice on couples' sexual problems. When he refused to give advice to same-sex couples because of his religious beliefs, his colleagues complained and he was suspended. He was later dismissed for failing to uphold the employer's equal opportunities policy. 

The EAT upheld an employment tribunal decision rejecting Mr McFarlane's claims for, among other things, direct and indirect religious discrimination. The EAT compared the facts to those in London Borough of Islington v Ladele and Liberty [2009] IRLR 154 EAT, where a registrar who had a religious objection to civil partnerships was disciplined for refusing to conduct civil partnership ceremonies. The EAT decision in that case was subsequently approved by the Court of Appeal in Ladele v London Borough of Islington [2009] EWCA Civ 1357 CA. Mr McFarlane was initially refused permission to appeal, but a renewed application that was supported by a statement on religious rights by Lord Carey has been heard by the Court of Appeal. 

In refusing Mr McFarlane permission to appeal, the Court of Appeal made the following findings:

• The EAT in Mr McFarlane’s case had been correct to find that the application by his employer of a "provision, criterion or practice" – here, the employer's insistence on compliance with its policy that counsellors advise same-sex couples – was a proportionate means of achieving a legitimate aim. To allow Mr McFarlane to opt out of giving advice to same-sex couples would undermine Relate's proper and legitimate equal opportunities policy. 
• The Court of Appeal decision in Ladele is authoritative law and should not be interfered with. The argument that the Court of Appeal had not considered relevant case law, including the decision in Copsey v WWB Devon Clays Ltd [2005] IRLR 811 CA, was rejected. The Court of Appeal decision is consistent with rulings in the likes of Copsey. 

The Court of Appeal felt it necessary to go on to consider Lord Carey’s statement because of his senior position and the "misunderstanding of the law" that it revealed. It made the following observations:

• Judges have never, as far as the Court of Appeal was aware, equated the condemnation by some Christians of homosexuality on religious grounds with homophobia, have never regarded that position as "disreputable" and have never likened Christians to bigots. 
• Lord Carey's mistaken suggestions may arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination, the law forbids discriminatory conduct not by reference to an individual's motives, but by reference to the outcome of his or her acts or omissions. 
• Addressing Lord Carey's deeper concerns about a "lack of sensitivity to religious belief", the Court of Appeal suggested that he meant that the courts ought to be readier than they are to uphold and defend Christian beliefs. While common law and the European Convention on Human Rights offer vigorous protection of the Christian's right (and every other person's right) to hold and express his or her beliefs, they do not offer a blanket protection of those beliefs solely on the ground that they are based on religious precepts. To do so would be to prefer the subjective over the objective and would also be "divisive, capricious and arbitrary" in a society where all people do not share uniform religious beliefs. 
• Lord Carey's suggestion of having a special court to hear cases involving religious rights would be "deeply inimical to the public interest". 

Additional resources

• McFarlane v Relate Avon [2010] IRLR 196 EAT Read about the Employment Appeal Tribunal decision in McFarlane v Relate Avon Ltd, which will not now go to appeal. 
• Ladele v London Borough of Islington [2009] EWCA Civ 1357 CA Read about the Court of Appeal decision in Ladele, which involved a registrar who refused to conduct civil partnership ceremonies between same-sex couples on the grounds that to do so would violate her Christian beliefs. 
• Equal opportunities and dignity at work policy Use this model policy as part of the company's staff handbook or as a stand-alone document if there is no handbook. Larger employers may wish to use XpertHR's more detailed separate equal opportunities and dignity at work policies. 

Case transcript of McFarlane v Relate Avon Ltd (on the BAILII website)