Protecting against discrimination by its nature opposes prejudice and bigoted views. But as three recent high profile cases have highlighted, it can also bring wider beliefs in to conflict, such as religious and ethical points of view.

The way in which the courts have tried to reconcile such views in these recent cases has provided some interesting, if not controversial results of its own, and poses some interesting questions. Audrey Williams of Eversheds LLP looks behind the headlines.

EAT rules on meaning of ‘philosophical belief’
Last year, the Employment Appeal Tribunal (EAT), in Grainger plc v Nicholson, considered a vital issue of interpretation of  the law protecting employees against discrimination and harassment on grounds of religious or philosophical beliefs. The case concerned the meaning of the term ‘philosophical belief’. After reviewing previous cases, the EAT summarised the criteria for a philosophical belief as follows:

•    the belief must be genuinely held;
•    it must be a belief, rather than merely an opinion or viewpoint based on the present state of information available;
•    it must be a belief as to a weighty and substantial aspect of human life and behaviour;
•    it must attain a certain level of cogency, seriousness, cohesion and importance;
•    it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others;
•    it must have a similar status or cogency to a religious belief but does not need to constitute or ‘allude to a fully fledged system of thought’; and
•    it need not be shared by others.

The case raised the question of whether ‘philosophical belief’ includes a belief that mankind is heading towards catastrophic climate change and therefore we are all under a duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same. Applying the principles outlined above, the EAT concluded that a belief in man-made climate change, and the alleged resulting moral imperatives, is capable of being a philosophical belief for the purpose of the Religion or Belief Regulations.
The case did not proceed to a full hearing to determine whether or not Mr Nicholson had been discriminated against by his employer as the case was resolved out of court with the employer denying any liability.

Religious views in the work place
When the concept of civil (same-sex) partnerships was introduced, local councils acquired a legal duty to provide appropriate registration services. In the case of Ladele v London Borough of Islington, Ms Ladele, a registrar, said she felt unable to reconcile her Christian faith with taking an active part in same sex unions and asked to be excused from involvement. Subsequently, two gay members of staff accused Ms Ladele of discriminating against the gay community and complained that they felt victimised by her stance.

The council took disciplinary action against Ms Ladele for refusing to be involved in civil partnership work. Ms Ladele, in turn, claimed that she had been subjected to religious discrimination and harassment by the employees who had complained about her and by the council in the way it had dealt with those complaints and taken disciplinary action against her.

The Court of Appeal held that Ms Ladele was not subjected to religious discrimination, commenting that ‘Ms Ladele’s proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community.’

Manifesting religious beliefs
Similarly, in McFarlane v Relate Avon Ltd, the EAT confirmed (before the Court of Appeal’s decision in Ladele), that it is not direct religious discrimination to treat someone less favourably because of the way their beliefs are manifested.

Mr McFarlane, a Christian who believes that same-sex sexual activity is sinful and that he should do nothing which endorses such activity, was employed as a relationship counsellor. When he asked to be exempted from working with same-sex couples where sexual issues were involved, his request was refused and Relate sought his assurance that he would carry out such work. Mr McFarlane’s failure to state this equivocally resulted in his dismissal.

The EAT rejected Mr McFarlane’s arguments that dismissing someone because of the way they have manifested their beliefs is the same as dismissing someone on grounds of their beliefs. Whilst the law protects a person’s ability to hold beliefs, it should not necessarily protect the substance of that belief, the court ruled. It also rejected his submission that he had been indirectly discriminated against, holding that Relate’s actions were justified as a proportionate means of achieving the legitimate aim of ‘providing a full range of counselling services to all sections of a community regardless, among other things, of their sexual orientation.

The Court of Appeal has since dismissed an application for appeal by McFarlane.  In its dismissal of the case, the Court of Appeal also turned down McFarlane’s request for a specialist panel of five judges with a "proven sensitivity and understanding of religious issues" to be set up to hear his and other similar cases.

Comment
Despite media suggestion that these three cases appear to support legal protection of some beliefs but not others, on closer examination of the courts’ findings this is not the case . In contrast to Nicholson, there was no issue in either Ladele or McFarlane as to whether Christianity was a religion or belief which could be protected. What these two cases do exemplify however is the difficult and emotive question of how religious beliefs and freedoms which conflict with the interests of others, particularly where those interests also enjoy legal protection, should be dealt with. The ruling of the courts seems clear to date: the right to hold beliefs must be protected but the rights to practise those beliefs if they conflict with legal protection offered in wider society is not.