The first item on this week’s Law in Action on Radio 4 is about the perceived conflict between the legal protections against religious discrimination and sexual orientation. It features Amanda Ariss of the Equality Rights Forum, Joanne Owers of the Employment Lawyers Association and Michael Phillips from the Christian Legal Centre. Unfortunately the segment is only nine minutes long, which means the debate doesn’t properly get going, but it’s still worth a listen.
It is worth restating the legal framework: if you want exemption from part of your duties because it offends your faith, then you are not being treated differently to other employees. The law does not allow you a claim of direct discrimination. You may have a claim of indirect discrimination, because although employees are required to do the same job, that requirement puts you at a detriment due to your religious belief. It is then a matter as to whether your employer can justify that requirement as a proportionate means of achieving a legitimate objective. No-one at any stage has balanced two groups’ rights and decided that one is the most important.
Joanne Owers makes that point well, but Phillips tries hard to cast the issue as whether or not sexual orientation discrimination “trumps” religious discrimination. It’s a combative and provocative tactic, and clearly not how the legislation is drafted or how the courts interpret it. Phillips is legally qualified, and should know better.
The one interesting point he does bring to the discussion is that doctors may refuse to perform abortions for religious reasons. It’s interesting to imagine if it would be lawful to remove that concession – if the matter were to be tested in the tribunal, then the difference between a gay marriage and what a Catholic would see as committing a murder might well be relevant to justification. In addition, there is a distinction between an employee who won’t deal with a particular class of service user (i.e. discrimination in to whom a service is provided) and those who will not perform a particular act irrespective of the nature of the patient.
For those interested in the two other cases he mentions, they are:
- Gary Mcfarlane
- Relate counsellor who refuses to counsel gay couples fails in discrimination claim - Stephen Copsey – requirement to work Sundays does not engage Article 9
The episode can downloaded here, but only for the next week. Helpfully the relevant item is the first up.
