Registrars – Religious Discrimination – 2

I regret having done such a long post on why Lillian Ladele might have won her religious discrimination claim in Ladele v London Borough of Islington, only for someone to kindly point me in the direction of the full judgment the next day. Anyway, props to Head of Legal and Family Lore for being on the ball. I agree with both their sentiments and analysis. I’ve now had an opportunity to go through the tribunal’s reasons. Apologies, as they say, for length:

Direct Discrimination

The central finding of direct discrimination on the basis of requiring her to perform civil partnerships is flawed, as all Registrars were treated the same way. Para 52 simply doesn’t make sense without further explanation. The tribunal records the submission that less favourable treatment can’t be found since all Registrars were forced to conduct civil partnerships. It then disagrees with this patently correct legal submission for no reason that it gives at all. At para 69 it identifies action by the employer that was carried out to all Registrars and identifies it as direct discrimination. This is plainly wrong.

The other direct discrimination found properly follows a detriment by detriment approach. Whilst the employer’s behaviour may well have been below par on the odd occasion, the tribunal doesn’t match the correct legal tests to the treatment in order to find discrimination. The wrong comparator, or no comparator, is identified throughout. For example, at para 56, (sharing her confidential details in breach of its own policies, and failing to redress breaches by its staff) Ladele submits that a suitable comparator is a Jewish Registrar who does not wish to work on a Saturday, or in the alternative that no comparator is required. Her stated detriment in that case is the way in which the employer dealt with concerns by gay employees at her behaviour. Choosing the Jewish worker as a comparator therefore doesn’t work, since the employer wouldn’t have any concerns by gay staff to deal with. A comparator whose existence would have meant the employer’s behaviour wouldn’t have been required provides no help whatsoever on whether the employer would or would not have mishandled the behaviour in that circumstance. A suitable comparator is surely a Registrar who refused to perform civil partnerships out of non-religious aversion to the practice. This provides a precise comparator with the religion stripped out, which would enable the Tribunal to determine whether religion or belief is the ‘grounds’ upon which the employer commits the less favourable treatment.

Subjecting Ladele to a disciplinary process is found as a detriment, and the fudged need for a comparator above is dealt with by the Tribunal making a finding that “the reason for Ladele refused to carry out civil partnership work was because of her orthodox Christian religion or belief and not because of the sexual orientation of the customers.” This is tricky factual ground – Ladele stressed her case in terms of believing that marriage should be between man and woman. In other words, it’s not the homosexuals she doesn’t like, it’s the marrying. It’s difficult to see how same-sex marriage can be divorced from same-sex attraction when one is the manifestation and legal recognition of the other. I can see how there’s an argument for both sides, but it would be useful to see how the tribunal came to this conclusion. We get the one sentence.

Another detriment found is the failure of the employer to redress allegations that Ladele is homophobic. The tribunal finds a detriment without reaching any conclusion on whether Ladele can be described as homophobic. Paragraph 64 fails to deal with the inference stage of the burden of proof.

Indirect discrimination

Our legal test here is that the employer must apply a provision, criterion or practice which it applies or would apply equally to persons not of the same religion as Ladele but which puts people of the same religion as her at a disadvantage, puts her at a disadvantage, and which the employer cannot show to be a proportionate means of achieving a legitimate aim.

Registrars are compelled to conduct civil partnerships, which puts a person who finds it religiously wrong to do so at a disadvantage. The role for the tribunal here is therefore to assess justification, the final limb of the above test.

The judgment seems obsessed with balancing the competing rights of the gay community not to suffer discrimination in service, against the religious beliefs of the Registrar. I believe that not only does it get that balance wrong, but further that a balancing exercise simply isn’t appropriate, and as an approach necessarily involves a value judgment on one set of values over another however much the tribunal emphasises it isn’t making one. The correct test is whether the prohibition of discrimination by its staff is a proportionate means of achieving a legitimate objective. At no stage does the tribunal reach a conclusion on whether or not it is, it simply finds that the employer failed to take notice of Ladele’s religious rights. Whilst that might go to the proportionality the tribunal doesn’t state this, it simply phrases the employer’s failure as a behavioural deficiency. Most striking is the way it records the employer’s submission that if a registrar was compelled to perform mixed-race marriages then this would certainly be a legitimate aim, yet doesn’t say itself whether or not it agrees. In a way, the tribunal seems to be saying that insufficient notice being taken of the employee in these particular facts is enough to make the means disproportionate. But it doesn’t follow that with saying  (a) what account the employer should have taken of her religious beliefs or (b) if it had taken sufficient account of her beliefs whether it could then have proceeded to reach the same conclusion in any case.

Justification is the central point of the whole case, and I think is insufficiently reasoned. But more on Meek in a moment.

Harassment

I’m left a little unclear as to what conduct is seen to consitute harassment. The tribunal seems to have jumped from saying that since the employer’s behaviour was found to consitute discrimination, if it had the effect of violating Ladele’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment then it must also be harassment. There is no reference to whether or not any action had that effect.

The tribunal seem to be taking the detriments regarding the disciplinary process they find under direct discrimination together with the action of the gay members of staff in calling her homophobic.

Meek compliance

As I hope I’ve made clear above, there’s a real argument to make that the tribunal’s reasons fail to identify:

(a) the issues which the tribunal has identified as being relevant to the claim;
(b) if some identified issues were not determined, what those issues were and why they were not determined;
(c) findings of fact relevant to the issues which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues

And that means that it’s not a valid judgment at all.

I’m also shocked that McClintock isn’t referenced at all during the judgment, being the only reported decision under the regulations at a conflict between a public servant’s beliefs and his job description.

Conclusion

This decision is certain to head for the EAT, and I don’t think I’m being unfair if I say that it will attract criticism for its reasoning. This is understandably an emotive issue, and it was incumbent on the tribunal to properly explore the issue of justification.

My greatest concern at the tribunal’s reasoning comes from para 63:

Ms Ladele was described as homophobic by Dion and Viktoria. Mr Lynch, by his own admission, did not ask Dion and Viktoria to consider whether they were discriminating against Ms Ladele on the grounds of her religion or belief. The Respondent throughout the evidence, made clear that they considered Ms Ladele’s refusal to celebrate civil partnerships as discrimination by her on the grounds of sexual orientation. Ms Ladele does not accept that she was homophobic. She had a good work record in dealing with all the people with whom she came into contact. She had regularly dealt with all members of the lesbian, gay, bisexual and transsexual community with whom she had come into contact except in connection with Civil Partnership arrangements. She has suffered a detriment.

Ladele’s attitude is effectively “I’m not homophobic, I just don’t think they should get married.” Not only does the tribunal blithely agree with her, it also concludes that a religious basis for the view discounts it from being homophobia, and that discrimination law should cushion her from being challenged on her views about others. And it does this without any discussion at all.

This is not only a wrong decision, it is a dangerous and prejudiced decision.