The conflict between religious freedom and other rights has recently been captured in the high profile Irish 'gay marriage cake case'. This joins an existing body of case law which demonstrates the uneasy relationship which exists between the protected characteristics of religion or belief and sexual orientation.
The 'gay marriage cake case'
The so-called 'gay marriage cake case' (also known as Lee v McArthur and ors) has garnered extensive press coverage. The Court of Appeal of Northern Ireland held that a bakery directly discriminated against one of its customers on the ground of sexual orientation by refusing to make him a cake with a slogan supporting same-sex marriage.
The argument of the husband and wife running the bakery that their rights to freedom of thought, conscience and religion and freedom of expression had to be taken into account was dismissed. To prohibit the provision of a message on a cake supportive of gay marriage on the basis of religious belief would be to permit direct discrimination. As the court pointed out, the potential for arbitrary abuse would be considerable if businesses were free to choose what services to provide to the gay community on the basis of religious belief.
Tensions between sexual orientation and religious belief
There have been a couple of recent employment cases which have explored the tensions between sexual orientation and religious belief and have come to separate conclusions.
In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd, an employment tribunal held that a Christian nursery nurse was directly and indirectly discriminated against by her employer on the grounds of her religion or belief when it dismissed her for expressing negative views about a colleague's homosexuality. The tribunal concluded that the issues in the case arose out of the manifestation of Ms Mbuyi's belief that homosexuality was a sin.
In contrast, in Wasteney v East London NHS Foundation Trust the Employment Appeal Tribunal (EAT) held that disciplinary action taken against a Christian senior manager for imposing her religious views on a Muslim junior employee was not discriminatory.
At first instance, the tribunal had dismissed Miss Wasteney's claims of direct discrimination and harassment on the grounds of religion or belief. The EAT dismissed the subsequent appeal, pointing out that the tribunal had found that the reason for the disciplinary action against Miss Wasteney was that her colleague had made serious complaints about acts which blurred professional boundaries and not that she had shared her faith with a consenting colleague.
As well as these recent cases, there are a number of other decisions, the most well-known of which are probably Ladele v London Borough of Islington and McFarlane v Relate Avon Ltd. In Ladele a Christian registrar refused to carry out civil partnership duties on the basis that same-sex relationships were against her religious beliefs. She was disciplined and found guilty of gross misconduct as her behaviour breached the council's 'Dignity for All' policy and was discriminatory towards the gay community. The case went all the way to the European Court of Human Rights (ECHR) where Ms Ladele sought to rely on her right to manifest her religious beliefs under Articles 9 (the right to freedom of thought, conscience and religion and to manifest one's religion or beliefs) and 14 (the right to enjoy the Article 9 right without discrimination on any ground). The ECHR rejected her claim noting that differences in treatment based on sexual orientation require particularly serious reasons by way of justification and that the council's aim of providing a non-discriminatory service was evidently legitimate.
In McFarlane v Relate Avon Ltd [2010] IRLR 196, Mr McFarlane, a Christian relationship counsellor with Relate, was dismissed because he did not feel that he could provide psycho-sexual counselling to same-sex couples as it conflicted with his religious beliefs. The EAT's view was that where an employee refuses to comply with principles that are fundamental to an employer's ethos (in this case, Relate's equal opportunities policy) and which the employer has pledged to the public to maintain, the employer does not have to compromise those principles by making or considering arrangements to accommodate the employee's requests.
Dress codes
"Neutral" workplace dress codes can cause conflict with the manifestations of an employee's religious beliefs. In Bougnaoui v Micropole Univers a company policy requiring an employee to remove her Islamic headscarf when in contact with clients, was held to constitute unlawful direct discrimination. Shortly afterwards in Achbita and another v G4S Secure Solutions it was held that a ban on wearing headscarves was a genuine and determining occupational requirement and the employer's adherence to a neutral dress code was held to be both legitimate and proportionate.
It will now be left to the ECJ to resolve the disparity between Achbita and Bougnaoui. Until a decision is reached, employers should ensure that they avoid dress codes that restrict an employee's right to wear garments associated with their religious beliefs.
Conclusion
Employers need to be aware of the need to avoid discrimination and the tricky balance that has to be achieved between conflicting rights. It will be legitimate to have a policy prohibiting behaviour which could amount to unlawful harassment, even though the behaviour in question merely consists of the expression of a strongly held religious belief. It will, however, have to be proportionate and applied equally to all religious groups.
