The case ofÂ London Borough of Islington v Ladele  UKEAT 0453_08_1912 is now on Bailii. As followers of the case will know, it concerned whether or not a registrar working for Islington was discriminated against unlawfully under theÂ Employment Equality (Religion or Belief) Regulations 2003, when she was threatened with disciplinary action due to her refusal to conduct civil partnerships. Her claim was based on her sincerely held Christian beliefs that civil partnership was akin to marriage, marriage was set down by God as an institution existing between a man and a woman, and it would be contrary to her religion to officiate.
I covered the original tribunal judgment (together with what I thought was wrong about it) in a post at the time; Carl Gardner at Head of Legal also pitched in to say that he thought the decision wrongÂ and both those posts are useful reading for those interested in the background of the case.
The result of the appeal was announced on Friday by the Christian Institute who funded Ladele’s claim, and I spent an hour on Monday afternoon reading a copy of the judgment from their website. I wish I hadn’t, as that version appears to be the draft one circulated by the EAT for correction by the parties, and contains some mistakes and differences to the one promulgated on Bailii and the EAT website. Circulating the draft was a bit naughty, and readers of this blog should make sure they read the correct version.
The EAT judgment, one of the last chaired by its President Mr Justice Elias before his imminent retirement, is thoroughly and clearly reasoned. The main flaws identified in the reasoning of the first instance tribunal are:
One of the chief problems with the original judgment was that it found direct discrimination had occurred, even though Islington was seeking to treat all its registrars the same: by requiring them to undertake civil partnerships. Direct discrimination requires a finding of fact thatÂ on the grounds of religion or beliefÂ the employer treated the employee less favourably than other persons. This point was raised before the ET:
52. Mr A Lynch, for the Respondent, argued that the adverse treatment to Ms Ladele was not on the grounds of her religion or belief. He submitted that the Respondent required all its existing Registrars to be Civil Partnership Registrars and that the rule applied equally to all Registrars so that Ms Ladele was not singled out. Mr A Lynch argued that Ms Ladele’s orthodox Christian views were unconnected to the Respondent’s decision. We reject this submission. The argument goes to the burden of proof. Applying a rule to all registrars does not mean that the Respondent has demonstrated that it did not commit an act of discrimination. We analyse the acts complained of below.
I argued back in July that this paragraph simply didn’t make any sense, and the EAT agrees that it is “difficult to understand”.
The EAT’s summary on direct discrimination is that such a finding is unsustainable.
52. The claimant’s complaint … is not that she was treated differently from others; rather it was that she was not treated differently when she ought to have been. The council refused to make an exception of her because of her religious convictions. That is a complaint about a failure to accommodate her difference, rather than a complaint that she is being discriminated against because of that difference. The council has been blind to her religion, and she submits that they ought not to have been.
53. It cannot constitute direct discrimination to treat all employees in precisely the same way.
The Tribunal further erred when it considered that the grounds for the employer’s action was religious belief. It is guilty, says the EAT, of confusing the reason an employer acted as it did (the correct test) with the employee’s reasons. If you burn down your employer’s factory because of your anarchist principles, the subsequent disciplinary action is not taken because of those principles. The employee’s beliefs are not the reason, the employee’s action is. The council’s reason for acting as it did was the employee’s refusal to conduct civil partnerships.
If discrimination was to be found against Ladele, this was the most likely type. Indirect discrimination is the correct claim where the employee has been treated the same as those not of that religion, but because of her religion the employee is put at a disadvantage by comparison. There is effectively a two stage test here – once that disadvantage is found then the employer must show that the disadvantage is justified as a proportionate means of achieving a legitimate aim. The legitimate aim was (for the most part) largely uncontested by Ladele – the council was under an obligation to provide a secular and discrimination-free service to the public. The argument was proportionality; Ladele wanted to be excused from civil partnership duty and said that the council could provide its service effectively if that concession were made. Its insistence was thus, she claimed, disproportionate.
The ET characterised this question, as it did throughout the whole judgment, as a ‘balancing exercise’ between the somehow competing rights of the religious and the LGB communities to non-discrimination. It described the council as having performed this exercise, criticised it for doing so, and then went on to rebalance the rights itself. This was wrong.
Liberty, interveners in the appeal, argued strongly against the notion that individual public servants might be permitted to discriminate if the service as a whole would be unaffected. Their argument seems to be that given a public body’s statutory duty not to discriminate, and to promote equality, if it permits its staff to engage in discrimination then it itself participates in the discrimination contrary to law. This argument finds some favour with the EAT:
111. Fundamental changes in social attitudes, particularly with respect to sexual orientation, are happening very fast and for some – and not only those with religious objections – they are genuinely perplexing. In that context there seems to us to be some virtue in taking a pragmatic line if it is lawful. However, whether the council may have been entitled to avoid bringing this matter to a head by not designating the claimant [to perform civil partnerships], in our view they were not obliged to do so. We think they were entitled not to agree to make an exception for the claimant. They were not required to connive in what they perceived to be unacceptable discriminatory behaviour by relieving the claimant of these duties. They were entitled to adopt as an objective an unambiguous commitment to the non-discriminatory provision of services by all staff who in the normal course of events, would be required to carry out those services. It would necessarily undermine that objective to make an exception for the claimant. Accordingly, their refusal to accommodate the religious belief of the claimant did not in our judgment involve unlawful indirect discrimination.
…although it does not necessarily agree that the council’s actions were the only lawful route it could take.
Burden of proof – Igen v Wong
There is much criticism of the tribunal’s application of the burden of proof. The relevant EU directive, the domestic legislation, and the case ofÂ IGEN Ltd & Ors v Wong  EWCA Civ 142Â lays down a two stage process to the burden of proof:
- First the Claimant must prove facts from which [minus any explanation from the employer] inferences could be drawn that the employer has treated her less favourably on the prohibited ground;
- the burden of proof then moves to the employer that he has not done so.
The ET dropped a huge clanger by treating that second stage as requiring the employer to show that the detriment didn’t happen: it doesn’t. It calls for non-discriminatory reasonÂ for it to be provided.Â Since the tribunal had already mixed up the employer’s reason with the employee’s, the employer was faced in a position where it simply could not win.
Whilst noting that the council did not behave as sensitively as it could have, the EAT simply concludes that harassment did not occur.Â
Good news for equality, good news for secularism, good news for employment relations and (dare I utter such a tabloid phrase?) good news for common sense. The judgment is worth a read. The Christian Institute say that it is likely the case will go to the Court of Appeal, but even if permission to appeal is granted – which would surprise me – it would be unlikely to overturn the EAT’s judgment.