Civil Disharmony
Date: 20 February 2009
Authors: David Tyme
Issue: Vol 159, Issue 7357
Categories: Features, Employment, Disciplinary&grievance procedures, Discrimination
In Ladele v LB Islington [2009] All ER (D) 100 (Jan) the claimant, who is a Christian, worked for LB Islington as a registrar of births, deaths and marriages for several years. The claimant considered a civil partnership to be a marriage in all but name only, and therefore the formation of a civil partnership was wrong. In 2004 she made it known that she was unwilling to undertake civil partnership ceremonies. The council in furtherance of its statutory duty decided that such ceremonies should be conducted by existing staff. The claimant made arrangements to change her rota to avoid civil partnership ceremonies. Subsequently, two other members of staff, one a Muslim and the other a Christian, similarly objected to performing civil partnership ceremonies: by way of compromise the council offered to limit their involvement to registration duties.
Disciplinary action
In March 2006 the claimant was accused of discrimination by two gay colleagues on grounds of sexual orientation and was threatened with disciplinary action if she continued to avoid her civil partnership duties contrary to the council’s “dignity at work” policy, because she failed to treat others fairly and equally because of their sexual orientation. However, in the interim, the council permitted the claimant to refrain from participating directly or officiating in civil partnership ceremonies, but required her to perform other incidental duties. The claimant rejected the arrangement. A hiatus followed until May 2007 when the council invoked its disciplinary procedure and conducted a preliminary investigation. The investigating officer concluded that the claimant had contravened the council’s policy. At the conclusion of the disciplinary hearing, the offer to limit the claimant’s role to nonceremonial duties was reiterated but the claimant declined.
The tribunal decision
Direct Discrimination
The tribunal rejected the submission that the council could not be liable for direct discrimination because the requirement to undertake civil partnership duties applied to all registrars. The tribunal found that the following acts amounted to a detriment:
Disclosure to the claimant’s colleagues of the action(s) that the council intended to take against the claimant, contrary to the council’s confidentiality policy.
Instigation of disciplinary proceedings.
Failure to consider the claimant for a superintendent post.
The failure to address allegations that the claimant was homophobic.
Determining that a letter articulating the claimant’s concerns amounted to gross misconduct.
The failure to apply the “dignity at work” policy to the claimant’s colleagues.
Threatening to terminate her employment.
Indirect Discrimination
The tribunal found that the claimant suffered a detriment as a result of the requirement to undertake civil partnership ceremonies, having particular regard to the fact that LB Islington could make alternative arrangements to accommodate staff who did not wish to undertake ceremonies on the grounds of their religion and still provide a “first class service”. Thus, the issue that fell to be determined was whether the provision, criterion or practice applied by the council was a proportionate means of achieving a legitimate aim. The tribunal answered this in the negative.
Harassment
The tribunal found that the complaints of victimisation by the claimant’s colleagues, breach of confidentiality, failure to consider the claimant for a superintendent post and instigation of disciplinary proceedings amounted to unwanted conduct and therefore the harassment claim was made out.
Appeal
On appeal, the Employment Appeal Tribunal (EAT) concluded on the available evidence that there was no proper basis for making a finding of discrimination on any basis. The EAT summarised the claimant’s case as being an allegation of direct discrimination because of her religion. However, it viewed such a contention as unsustainable, given the claimant’s complaint is that she was not treated differently when she ought to have been, which translates into a complaint about a failure to recognise her difference rather than a complaint that she had been treated less favourably because of that difference.
The EAT postulated the scenario of an employee who was dismissed for burning down his employer’s factory because of his philosophical beliefs; the reason for the dismissal was arson and not the philosophical beliefs of the employee. The EAT considered that the tribunal misapplied the principles in Igen which requires the claimant to establish primary facts from which a tribunal could, absent a credible explanation, infer discrimination. In this case the tribunal failed to consider the explanation provided by the employer for the less favourable treatment. Th e tribunal should consider whether it is satisfied that the employer’s reasoning was non discriminatory, albeit unreasonable. If so, the claim must fail. The tribunal considered whether the employer had proved that the alleged discrimination did not occur, which failed to answer the question why it occurred. The EAT felt that this erroneous approach permeated all the findings of direct discrimination, except the finding that the claimant had committed an act of gross misconduct, but given the fundamental error of law identified, it was uncertain that the Igen principles had been properly applied.
Comparators
The EAT concluded that the tribunal had also erred in concluding that the reason for the breach of confidentiality was the claimant’s religious belief. The EAT accepted that the disclosure was unreasonable; but it did not follow as a corollary that the reason was the claimant’s religious belief. The EAT observed that the correct comparators ought to have been a hypothetical or statutory comparator, namely another registrar who refused to carry out their civil partnership duties because of an antipathy towards same sex relationships, that was not founded upon their religious belief. If the registrar would equally have been obliged to carry out civil partnership duties and subjected to a similar disciplinary process, this would prevent a finding of direct discrimination. The EAT accepted that the position of the two gay registrars was materially different to that of the claimant who sought to challenge the council’s decision not to excuse her from civil partnership duties, whereas the two gay registrars were not seeking to be excused, but were complaining that it was discriminatory for the claimant to be exempted from performing such duties. The EAT observed that even if it was wrong on this issue the council could justify its conduct.
More generally, the EAT opined that the tribunal had confused the reasons why the claimant acted as she did with the council’s reasons for treating the claimant as it did.
The EAT considered the tribunal’s finding in relation to the allegation that the claimant had committed gross misconduct evidenced a further misapplication of Igen, because there was no evidence to establish that the reason for the finding of gross misconduct was the claimant’s religion. In fact, there was “powerful” evidence that the reason for the disciplinary proceedings was the claimant’s failure to carry out her civil partnership duties. In conclusion, having regard to the lack of evidence upon which a tribunal could reasonably conclude that the claimant was subjected to direct discrimination on the grounds of her religion, the EAT substituted a finding that there was no discrimination.
The EAT relied on its reasons for finding that the claimant had not been subjected to direct discrimination and concluded that the finding of harassment was similarly flawed. Accordingly, a finding of no unlawful harassment was substituted.
Indirect Discrimination
As regards the finding of indirect discrimination, the EAT accepted that the requirement for all registrars to perform civil partnership ceremonies placed persons of the claimant’s religion at a particular disadvantage in comparison with other persons who do not share the same religion. The disciplinary proceedings and the risk that her employment may have been terminated amounted to a detriment and therefore the tribunal should have considered whether the council’s requirement was a proportionate means of achieving the legitimate aim of providing effective civil partnership arrangements as a public authority committed to the promotion of equal opportunities. The claimant accepted that the promotion of rights of members of the gay community is a legitimate aim. In considering this question the EAT held that the requirement for staff to act in a non discriminatory manner was rationally connected with the legitimate objective. Furthermore, the council was entitled to conclude that it would be wrong to allow registrars to decide whether and if so which obligations they should carry out depending upon their religion, as this would convey the wrong message to staff about the council’s commitment to equality.
Policy considerations
Therefore, the refusal to accommodate the claimant’s beliefs was justified and it was irrelevant whether the claimant could be accommodated without adversely affecting the provision of the service that the council was obliged to provide.
The way forward
In conclusion, it is of note that the EAT acknowledged that pragmatic solutions to accommodate differing beliefs may be a permissible and lawful way of reconciling conflicts in such a sensitive area.
Accordingly, in appropriate circumstances, it appears it may still be arguable that, if exempting an employee does not affect service delivery, an employer could justify treating an employee more favourably by recognising an employee’s difference which may be due to his, among other things, religion or sexual orientation. The EAT in Ladele did, however, acknowledge that the council was entitled to take the stance that it did to ensure that it was not perceived to be conniving in unacceptable discriminatory practices. An issue that may fall for consideration in due course is whether an employer’s actions in similar circumstances would amount to aiding and abetting a discriminatory act.
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