Religious viewpoint not protected in Discrimination Law
McFarlane v Relate Avon Ltd, a high profile discrimination case that reached the Court of Appeal recently, was unsuccessful in getting permission to appeal against a decision of the Employment Appeals Tribunal (the EAT).
The appeal was made by Gary McFarlane, who was employed as a relationship counsellor by Relate Avon Ltd. He was dismissed for refusing to provide psycho-sexual therapy (PST) counselling to same sex couples, as this was contrary to Relate’s equal opportunities policy.
Mr Mc Farlane’s position was that he could not provide the therapy to same sex couples due to his Christian beliefs, and so brought claims for direct and indirect religious discrimination, harassment, unfair dismissal, and wrongful dismissal.
His claim was unsuccessful at an employment tribunal, as it was found Relate did not dismiss because of his Christian faith, but “because Relate believed that he would not comply with its policies and that it would have treated anyone else of whom that was believed, regardless of religion, in the same way.”
Mr McFarlane appealed the decision to the EAT. The appeal again lost, the EAT finding that there might be cases, in the absence of any other context, where an employer’s actions could not be separated from an objection to the belief, but in this case it was not due to his beliefs, but his refusal to comply with his employer’s policy requirements.
In refusing permission to appeal, Laws LJ concluded that:
“… there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society.”
In other words, there is protection for anyone holding a belief, but not for the substance of the belief – which in this case was that Mr McFarlane could not comply with Relate’s equal opportunities policy.