Usefully Employed

***EDIT - I’ve now been pointed towards the full judgment, available here. So much of what appears below can be disregarded! Please read the the new post here!***

Thanks to Family Lore for noticing that Christian marriage registrar Lillian Ladele has won her religious discrimination claim following her refusal to perform civil partnerships. As usual with legal stories the mainstream reporting is fairly shoddy, after reading the BBC article I couldn’t be sure if she’d only won on harassment (not big news) or she’d won on in/direct discrimation (big news). Oddly enough the Telegraph seems to be the only source I can find at the moment with any detail. Story here, and the only report of reasons is:

The panel said: “Islington Council rightly considered the importance of the right of the gay community not to be discriminated against but did not consider the right of Miss Ladele as a member of a religious group.

“It decided that the service it provided was secular and that the rights of the lesbian, gay, bisexual and transsexual community must be protected.

“In so acting, Islington Council took no notice of the rights of Miss Ladele by virtue of her orthodox Christian beliefs.”

The tribunal said the council’s failure to take her concerns seriously and the decision to give her an ultimatum between her faith and her £31,000-a-year job was “a violation of Miss Ladele’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment”.

It also noted that the council had admitted they could provide a “first class service” without Miss Ladele carrying out civil partnership ceremonies and that she had a good work record when dealing with gay men and women.

Legally, this is not particularly illuminating. We don’t have the facts they found, we don’t have the legal arguments they accepted and applied.

Looks like this particular one will have to await the EAT - but it’s an interesting contrast with the Christian magistrate. Sadly the discussion in that case - McClintock - is confined to judges, which perform a very different task to that of a registrar. There is some useful guidance however:

• Direct discrimination: In McClintock it was held that direct discrimination could not succeed, as the DCA would have treated any of its magistrates the same as it did him. The same is likely to be true of Ladele.
• Indirect discrimination: The blanket requirement on magistrates to adhere to the judicial oath was held to be justified. Would that work with registrars? There’s a clear parallel between magistrates picking and choosing cases (and in McClintock’s favour don’t forget that’s what he wanted to do, he didn’t say he should be allowed to apply his religious views to the cases he heard). A registrar’s function is somewhat less vested with responsibility than a magistrate, but is akin to a judicial function. I believe that the issue will be a delicate one, but would be surprised if no justification were found.
• Harassment - if she was subjected to bullying due to her religion, then clearly it’s open to the tribunal to find harassment. What I believe she can’t do is simply refer to the management instruction to perform all ceremonies as harassment.

Anyway, ultimately we don’t know why she won yet, or even if she did on all points.

Any human rights arguments in McClintock were quashed by reference to the judgment of the House of Lords in Begum v Denbigh High School. I have no idea whether human rights have been raised by Ladele, but I think she’ll fail. Lord Bingham at para 23 (I’ve trimmed it down a bit):

The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience. Thus in X v Denmark (1976) 5 DR 157 a clergyman was held to have accepted the discipline of his church when he took employment, and his right to leave the church guaranteed his freedom of religion. His claim under article 9 failed. In Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, paras 54 and 57, parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their children to state schools or educate them at home. The applicant’s article 9 claim in Ahmad, above, paras 13, 14 and 15, failed because he had accepted a contract which did not provide for him to absent himself from his teaching duties to attend prayers, he had not brought his religious requirements to the employer’s notice when seeking employment and he was at all times free to seek other employment which would accommodate his religious observance. … In rejecting the applicant’s claim in Konttinen v Finland (1996) 87-A DR 68 the Commission pointed out, in para 1, page 75, that he had not been pressured to change his religious views or prevented from manifesting his religion or belief; having found that his working hours conflicted with his religious convictions, he was free to relinquish his post. … In Stedman v United Kingdom (1997) 23 EHRR CD 168 it was fatal to the applicant’s article 9 claim that she was free to resign rather than work on Sundays. The applicant in Kalaç, above, paras 28-29, failed because he had, in choosing a military career, accepted of his own accord a system of military discipline that by its nature implied the possibility of special limitations on certain rights and freedoms, and he had been able to fulfil the ordinary obligations of Muslim belief…

For what my opinions are worth, it’s interesting that Ladele raised as part of her evidence for harassment that her behaviour had been compared by colleagues to a registrar refusing to marry a black person, and that she was called homophobic. Presumably she actually means refusing to marry a different race couple, but if a person’s genuine religious or philosophical beliefs dictated against a ‘mixing of the races’ - as is conceivable - then their case would be on all fours with hers. Calling that person a racist would be uncontroversial. Labelling Ladele homophobic is simply being descriptive; her tribunal case depends on her disapproval and dislike of gay relationships.