I have taken part in a podcast with Charon QC, where we talk about discrimination law. Listen to it here:
Archive for the 'Discrimination' Category
*LONG POST ALERT!*
This House of Lords decision has wreaked havoc upon the Disability Discrimination Act. I feel I ought to set down why, as the potential consequences for employees with potential claims are serious.
I’ll also admit to some embarrassment that it’s taken me quite so long to engage with this issue on the blog, leaving it to others to discuss- who have better things to do than wet their toes in the murky waters of employment.
Background
To see where the HL case takes us, it’s necessary to look at how it used to work, and the statutory framework.
Disability discrimination is a strange beast. The ‘other’ discrimination legislation offers us two main forms of discrimination (leaving aside harassment for the time being): direct discrimination and indirect discrimination. These are usually phrased as follows:
Sex Discrimination Act 1975
1 Direct and indirect discrimination against women
(1) …a person discriminates against a woman if-
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or
(b) he applies to her a requirement or condition which he applies or would apply equally to a man but-
(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
(iii) which is to her detriment because she cannot comply with it.
(don’t worry equality fans - under s2 the provisions apply equally (pregnancy aside) to protect men as well as women)
So (a) is direct, where the less favourable treatment is personal to her, and is done because of her sex. (b) is indirect discrimination, where everyone is treated the same, but that treatment puts one gender at a particular detriment. So, if I state all my security guards must be at least 6′ tall, I’m in breach of 1(b) unless I can justify it. Roughly similar provisions exist with race, age, sexual orientation, and religion or belief.
Disability discrimination (I shan’t go into the history lesson of why) instead has the following:
Disability Discrimination Act 1995
3A Meaning of “discrimination”
(1) For the purposes of this Part, a person discriminates against a disabled person if-
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment in question is justified.
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
I’ve left out some stuff which we’ll come back to later. So we again have the two part test, but the first ((1) which we’ll call indirect) is much more broadly drawn than in the SDA. The second ((5) which we’ll call direct, and cannot be justified by the employer) is much more tightly drawn than in the SDA. But they have always been taken to have a broadly similar effect.
We can see 3A(1) in action with the following scenario:
Mavis has been a secretary for 25 years, and is competent and efficient. She applies for a job which requires her exact skills and experience, but involves a significant amount of copy-typing. Over the last year, Mavis has developed severe arthritis in her hands. Whilst she can do the odd bit of typing, and operate a computer, significant copy typing is beyond her. She has experimented with speech-to-text software at home, and knows that she could perform the job if she were provided with it. A suitable package would cost the employer £80. Dennis, the manager, refuses to hire Mavis, because he strongly feels that typing skills are a key requisite for the job.
We have to answer four questions to decide if Mavis has a claim, which I’ve answered according to the traditional view of s3A(1):
- What is the less favourable treatment? - Clearly the less treatment is refusing to hire Mavis, a type of discrimination potentially unlawful under s4(1)(c)
- What was the reason for the treatment? - The reason for the treatment is Dennis’ requirement that the appointee can copy-type.
- Did that reason relate to the person’s disability? - Looking at it backwards, Mavis’s arthritis relates to her ability to copy-type, which is the reason she is not employed. So, yes.
- Was it less favourable than the treatment of others to whom that reason did not apply? The “others” in this case would be those who do not have arthritis, and can therefore copy-type.
So Mavis’s discrimination claim clears the first hurdle, and will only be defeated if Dennis can justify the treatment. If indeed the problem can be negated by spending £80, then he will have an uphill battle. The reason the final sentence of question four is in italics is that it is why we’re all here today. The question posed at four, and the language of the statute, is ambiguous. Linguistically it could be taken to describe one of two possible comparators: first, that Mavis should be compared with someone who does not have arthritis, and can therefore copy type; or second, that Mavis should be compared with someone who does not have arthritis, but nonetheless cannot copy-type. This difference is crucial, as Dennis would have hired the first comparator, but not the second. If we choose the second comparator, then Mavis has been treated no less favourably, and her claim fails.
The (in employment terms) long-standing Court of Appeal case of Clark v Novacold addressed this problem of comparators. In that case, the employee had sustained injuries which meant he could not return to work for at least a year. He was dismissed. Is the correct comparator someone who had not been injured, so could work, or someone who had not been injured such as to give them a disability, but could nonetheless not return to work for at least a year? Mummery LJ held that the first comparator was the one intended by parliament. Or if you want that in judge-speak:
‘…that reason’ refers only to the first three words of the paragraph-’for a reason’. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression ‘which relates to the disability’ are words added, not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation the others to whom ‘that reason’ would not apply are persons who would be capable of carrying out the main functions of their job. Those are the ‘others’ proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark has been treated less favourably: he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed.
You will see that the question of the comparator is related to how close the ‘reason’ needs to be to the disability in order to be ‘related’ to it. The two are connected - if less favourable treatment of a disabled person compared to a non-disabled person is borne out, then the reason is related to the disability. This is all logical, and demonstrative of the parliamentary intention because of the existence of the justification defence. You make the first hurdle low such as to give employees the chance to attack discrimination in as wide an array of circumstances as possible, but give the employer a defence to avoid injustice or absurd results.
The House of Lords decision
The first thing to say is that this is a housing case, not employment. Section 24 of the Act concerns disability discrimination in housing, but its definition of discrimination falling to be construed is the same as s3A(1) - save for justification being subject to different conditions. Malcolm was a schizophrenic who as a result unlawfully sublet his council house. This had the legal effect of demoting his secure tenancy to a mere contractual one, and furthermore meant, by law, that Lewisham had a mandatory ground of possession against him. A court would therefore prima facie have no discretion in whether or not it ordered possession. The question is whether the authority’s action in evicting him is unlawful. The same points fall to be considered as with poor old Mavis:
- What is the less favourable treatment? - His eviction is the treatment.
- What was the reason for the treatment? - The reason for the treatment is the local authority’s duty to provide housing to vulnerable people, meaning it cannot allow its housing stock to be sublet to people it does not know while others wait on housing lists.
- Did that reason relate to the person’s disability? - …
- Was it less favourable than the treatment of others to whom that reason did not apply? …
But our answers to questions 3 and 4 have changed. Under the Clark v Novacold approach, the schizophrenia is the reason is the reason for the sublet, which is the reason for the treatment. The relationship is established. In Malcolm however, it is held that for the reason to be related to the disability, the disability itself must have played some part in the decision making. On the facts of this case, the schizophrenia played no part in the decision making process, so the reason could not ‘relate to’ the eviction. So, the disability must have (consciously or unconsciously) an effect on the discriminator’s mind. This is all well and good for direct discrimination. But look again at the definition of indirect discrimination under the Sex Discrimination Act - could you attach such a requirement to that wording? It wouldn’t work: if the employer did not know that his job descriptions made life more difficult for women, he would escape a claim. So, already, an indirect discrimination claim using s3A(1) looks as though it is on shaky ground.
But of far more effect however is the Lords’ answer to question 4. Is our comparator:
- someone without the disability who therefore would not have sublet; or
- is it someone without the disability who nonetheless has sublet?
If it’s the first, then Malcolm has suffered discrimination, subject to Lewisham’s ability to justify the treatment. If it’s the second, then Malcolm has been not been treated unfavourably due to a reason related to his disability, and has no claim.
Under Clark v Novacold it would be the first option. This is one of the fundamental effects of Lewisham v Malcolm - the choice of comparator has been overruled. So now Malcolm must be compared with someone who was not schizophrenic but still sublet his property - his treatment was the same as that person, so, no discrimination.
This doesn’t in this case lead to a particularly unjust result. But what about poor old Mavis? Let’s answer her question four again:
Was [her treatment] less favourable than the treatment of others to whom that reason did not apply?
Her comparator is now someone who doesn’t have a disability such as arthritis, yet cannot copy-type. Since this comparator would not have been hired either, she has not been subjected to less favourable treatment. Her claim fails.
In the field of employment this leads to patently absurd conclusions. Who is the correct comparator for a blind man who wishes to work in an office? Before, it was someone who could see his way around the office, but now it is a man who is not blind but cannot see (perhaps by persistently keeping his eyes shut as he feels he way round the desks).
The raising of this bar for an s3A(1) claim is such to effectively exclude indirect discrimination altogether. Few if any claimants will be able to show that their comparator would have been differently treated. It’s difficult to see the difference now between s3A(1) and s3A(5). s3A(5) contains the supposedly higher bar of direct discrimination, and further provides that unlike s3A(1) cannot be justified by the employer. And that, for me, is demonstrative of the biggest flaw in the Lords’ reasoning. In fact:
…parliament has [since Clark v Novacold] legislated on the basis that it is correct … If the old section 5(1) (now section 3A(1)) had had the narrow scope which your Lordships’ interpretation would give it, it is difficult to see why Parliament needed to introduce section 3A(5). It could simply have repealed the justification provision in section 5(1)(b).
Not my words, but those of Baroness Hale, unfortunately in the minority. Under s3A(5) there would simply be no need for its qualification:
…less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
…if the same were to apply to the s3A(1) construction. That prescriptive definition is clearly designed to contrast with the more intelligent comparison required by s3A(1).
Adjustments
There has been talk of the duty to make reasonable adjustments coming to the rescue:
4A Employers: duty to make adjustments
(1) Where-
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
…which it will, to an extent, but only for employees. Bizarrely under the DDA, the employer has a duty towards applicants to make adjustments (eg to its premises), but a breach of this duty is missed out in s4, which lists what discrimination is actually unlawful, and therefore attracts a remedy. Applicants can only bring an adjustments claim in relation to the recruitment process. So if Mavis was already employed, and then developed her arthritis, her employer would almost certainly have to shell out for the text-to-speech package, and could not lawfully dismiss her.
Conclusion
This House of Lords decision has effectively killed off indirect discrimination in the field of employment, certainly putting the UK in breach of its obligations under EU Directive 2000/78/EC. As I believe another commenter has said, hard housing cases make bad employment law. Some have suggested that the EAT might decide that they need not follow the case - this is wishful thinking.
It’s easy to fulminate against the Lords - but in some ways their decision is representative of the sloppy drafting in the DDA. Hopefully the government will take account of this decision and remedy it in the new equality bill which will be published soon, and come into force around April 2009 - although what disabled job applicants are meant to do until then, I’ve no idea.
This is a complex area, and I’m interested to know if people think I’m right.
…well, it was hardly a surprise, was it?
It is reported here that Stonewall want to intervene. Meanwhile, I’ve picked up on this blog (mainly because it was kind enough to link to me), which has rounded up some of the reaction to the judgment. Most amusing yet predictable is the Daily Mail’s stance that:
- … it applauds Ladele’s tribunal win, yet believes Muslim checkout staff who refuse to serve alcohol should be sacked on the spot;
- … her win is “a victory over Labour’s equality agenda” - her win was actually under the Employment Equality (Religion or Belief) Regulations enacted as part of Labour’s, erm, equality agenda. Shurely shome mistake?
The rules on the burden of proof in discrimination cases have been discussed on this blog quite recently - the case of Kenney v Ministry of Defence is nicely illustrative of a case where the Claimant fails to cross the first hurdle, in other words that she failed to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an act of discrimination.
This report is also interesting as it concerns military service personnel, and the system of promotion in the Royal Navy. These are matters rarely seen in the EAT, as large parts of employment legislation do not apply to these people, discrimination being one of the only exceptions.
Recently I posted on the Army becoming a Stonewall Diversity Champion - their dramatic change of approach over the years met with little interest.
Compare and contrast with the situation in the USA, with their odd ‘Don’t ask, don’t tell‘ policy. The effect of the policy is to forbid LGB service personnel from disclosing or discussing their orientation, but in turn to forbid their superiors from investigating it. This is seen as a compromise between allowing the undoubtedly hundreds of gay servicemen and women to remain, while appeasing those who believe the presence of homosexuality (or perhaps rather its disclosure or expression) is detrimental to the services’ operation, or just plain immoral.
Feelings run high - a Senate subcommittee has recently investigated the issue. Witnesses before the subcommittee included the first soldier to be injured in the Iraq war - he had his leg blown off, and had nothing but praise for his colleague’s attitudes towards his homosexuality both before, during and after the incident. His testimony is sincere and heart-wrenching.
The founder of the anti-gays in the military “Center for Military Readiness”, instead warn of the dire consequences of more openness:
“inappropriate passive/aggressive actions common in the homosexual community”;
“forcible sodomy” and “exotic forms of sexual expression”;
Soldiers “‘who do have religious convictions,” would be alienated by the “sexualized atmosphere” if forced to serve with gays and suffer their “introducing erotic factors” to the military;
The increase of “HIV positivity”.
Melissa McEwan does an excellent Comment is Free piece on it - also check out her blog. You can watch video summaries of the two witnesses at the Lavender Newswire - do, it’s worth ten minutes of your time.
Especially with US elections looming, it’s fascinating to see how issues so divisive over there fail to arouse barely any interest here at all.
You wait ages for reports of decisions on injury to feelings awards, and two turn up at once. Following on from my last post about a gay member of staff bullied because of his sexuality, this is a more ‘traditional’ claim of workplace harassment of a female member of staff by her male manager.
To summarise the behaviour she suffered, taken from the ThisIsLondon Report:
Mrs Price was groped by her boss Peter Tunney after he learned she had had breast enhancement surgery to combat a hormone deficiency when she was 21.
Mr Tunney, 43, asked to ‘inspect’ the results and began a campaign of sexual harassment against Mrs Price.
The tribunal in Exeter heard that on October 29, 2006, Mr Tunney lunged at Mrs Price and tried to kiss her after a long day at work.
Four days later Mr Tunney, who the tribunal heard has a serious alcohol problem and has been involved in similar incidents with other women, tried again.
He forced her on to a sofa and kissed her while putting his hands up her jumper.
When she complained the employer’s response was to dismiss her, and by text message too. So far as the (admittedly less than reliable) news reports say, there seems to have been an injury to feelings payment of £23,741 from the employer, plus £5,256 from Tunney personally. It’s not widely known by the public that the perpetrators of discrimination are added personally to claims, but it’s always an excellent tactic by a Claimant. The payments seem to be at the top of the Vento guidelines, which must be right for what sounds as though it was serious harassment. The news report seems to hint that the Claimant was involved in the atmosphere of innuendo in the workplace - but we don’t know if the tribunal reduced compensation as a consequence, as it is entitled to do where the employee is complicit in some of the behaviour.
Furthermore as she was dismissed by reason of her complaint, she would also have a claim for victimisation, but it is not mentioned in the report if this was a separate head of claim.
In dramatic style, Stonewall has named the Army as its 400th Diversity Champion. It must be remembered that it has only been a few years since the RAF went to Strasbourg to defend an outright ban on gay service personnel.
Stonewall quote General Sir Richard Dannatt, Chief of the General Staff, as saying:
I am delighted that the Army has become a member of Stonewall’s workplace programme. One of the Army’s six Core Values is ‘Respect for Others’ and it is therefore our absolute duty to treat our fellow soldiers as we would wish to be treated ourselves. Discrimination against those in the Army who are lesbian, gay and bisexual does not give them a chance to contribute or to play a full part in the teams that are vital for our success on operations. Respecting others is therefore part of the trust that has to exist between soldiers and the Nation’s values of tolerance, decency and quality must be reflected in the Army. We look forward to working with Stonewall.
We’ve come a long way from when it was thought gay soldiers ought to have separate showers and dormitories.
Interesting article in the Times interviewing Nicola Brewer, the chief executive of the Equalities and Human Rights Commission. She says that although maternity rights have been important, it is “an inconvenient truth that giving women a year off work after the birth of each child … was making employers think twice before offering a job or promotion.”
Added to this is the inequality of parental entitlements between men and women - the suggestion is that this forces women into the carer roles.
I can see the wisdom in this view, and have spoken to many many small employers who actively avoid women of child-bearing age. If our parental entitlements were gender neutral, and enabled both parents to take time off, then women would perhaps be de-stigmatised.
Although, I’m not sure that Brewer thinks women should lose any entitlement to make up the father’s - what’s the solution here? They can’t both have a year off, can they?
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.
***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.
