The McFarlane versus Relate case has made it clear that employers are entitled to require staff to conform to equality and diversity policies in relation to both colleagues and those to whom they provide services, no matter what their religious beliefs.
The indirect discrimination case in question involved Gary McFarlane, who was dismissed by relationship counselling service Relate Avon in 2008 for refusing to give sex therapy to homosexual couples as he said that such activity conflicted with his traditional evangelical Christian beliefs.
But yesterday, the High Court turned down his bid to challenge the decision of an Employment Appeal Tribunal, which was given on 30 November 2009 and backed Relate’s stance.
Rachel Dineley, an employment partner and head of the diversity and discrimination unit at legal firm Beachcroft, said of the move: “The challenge for employers, in practice, is to strike a balance where no individual or group is preferred in contrast to or in conflict with any other. In many instances, sensitivity and open discussion in consultation will lead to an agreement as to how a religious preference can be accommodated.”
But she added that it was now clear that employers had the legal right to demand employees “to adhere fully to their policies and procedures, designed to ensure equality and diversity for all in the workplace as well as those to whom they provide any service”.
Looking at the situation from a human right’s point of view, the Court had clarified the difference between the law’s protection of the right to hold and express a belief and its protection of that belief’s substance or content. Free speech is safeguarded under both common law and article 9 of the European Convention on Human Rights.
“By contrast, they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the grounds only that they are based on religious precepts. These are two conditions of a free society,” Dineley said.
She added that, in cases of indirect discrimination, the Court had now clarified that discriminatory conduct, “not by reference to the actor’s motives but by reference to the outcome of his or her acts or emissions”, was illegal.