McFarlane v Relate Avon Ltd EAT/0106/09
religious discrimination | refusal to counsel same-sex couples
The Employment Appeal Tribunal (EAT) has agreed with an employment tribunal 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.
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.
Mr McFarlane's claims in an employment tribunal included direct and indirect religious discrimination. The tribunal found that Mr McFarlane had not been directly discriminated against because Relate would have treated in the same way any other employee who, for reasons unrelated to religion, had acted in a way so at odds with its equal opportunities policy. His claim for indirect discrimination was also rejected, with the tribunal saying that Mr McFarlane's dismissal was a proportionate means of achieving the legitimate aim of maintaining its commitment to providing a service to all sections of the community without any suggestions of discrimination.
The EAT upheld the employment tribunal decision on direct discrimination. It rejected Mr McFarlane's argument that the tribunal drew an illegitimate distinction between the immediate conduct that led to the act complained of (ie Mr McFarlane's unwillingness to counsel same-sex couples) and the religious belief of which that conduct was an outward and visible sign. In a case such as this, the fact that the employee’s motivation for the conduct in question may be found in his wish to manifest his religious belief does not mean that that belief is the ground of the employer’s action.
The EAT went on to reject Mr McFarlane's appeal on the indirect discrimination issue, comparing the facts to those in London Borough of Islington v Ladele and Liberty  IRLR 154 EAT, where a registrar who had a religious objection to civil partnerships was disciplined for refusing to conduct civil partnership ceremonies. In that case, the EAT had said that, in a case where a body such as a council has the aim of providing the full range of its services to all members of a community regardless, among other things, of their sexual orientation, it may properly insist on all staff participating in the services in question. This is the case even if to do so is in conflict with employees' religious beliefs, because to do otherwise would be inconsistent with the principle that the employer espouses.
Case transcript of McFarlane v Relate Avon Ltd (Microsoft Word format, 52K) (on the EAT website)
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