The other court case that has attracted massive interest this week has of course been that of Lillian Ladele, who, an Employment Tribunal has found, was both directly and indirectly discriminated against on grounds of her religion, and was harassed on religious grounds, too, by disciplining her for her refusal, as a Christian, to perform civil partnership ceremonies. John Bolch at Family Lore has already posted about the case, as has Usefully Employed – and I agree with them both.
The Tribunal’s ruling is an extreme one: I hope Islington appeal, and think they must have a good chance of succeeding. How on earth can the Tribunal have concluded this was direct discrimination? Direct discrimination is where you treat someone less favourably than others not because they refuse to perform this, that or the other duty, but because they are female, or black, or a Christian. That has plainly not happened here: the Tribunal has fallen into the obvious error of thinking that, because Ms. Ladele’s beliefs are in direct conflict with a duty to carry out civil partnership ceremonies, it follows that requiring her to carry them directly discriminates against her. It doesn’t. Nothing could be plainer than that what happened here was at most indirect discrimination.
And surely any indirect discrimination was justified, too. Other councils like Kent may permit registrars to opt out of civil partnerships, but it does not follow that all employers must do so, any more than the fact that some schools permit girls to wear the jilbab means that all schools must do so. Giving a fair and equal service to the public and ensuring the availability of registrars must be an eminently justifiable reason for requiring registrars to work on civil partnerships. The Tribunal’s refusal to take Islington’s approach seriously risks giving religious minorities extreme, unwarranted protection as employees – to the extent that pursuing a secularist approach to public service provision is unlawful. That seems to me the implication of what the Tribunal has done.
Repeatedly the Tribunal says that the rights of one section of society (gay people) should not trump those of another section (religious believers), and the essence of the direct discrimination it feels Ms. Ladele suffered was that her rights were seen by Islington as “trumped” by gay rights. But the Tribunal has failed to consider whether, in striking a balance between the rights of employees on the one hand and the right of the public on the other, a public authority providing a public service, and which has a legal duty to do so in a way which does not discriminate on grounds of sexuality, may properly put the rights of the public first.
As for the Tribunal’s findings on harassment, I think they’re shocking to be frank. I don’t think the Tribunal properly addresses the question whether the so-called harassment (which at least in part consisted simply in the council’s applying what it genuinely considered – and I think for good reason – a non-discriminatory and secularist policy) was on grounds of religion. And it deals in the most cursory, question-begging way with the question whether what Islington did created an intimidating, hostile or offensive working environment.
It’s a bad decision, this: and dangerously feeds the increasingly militant claim by religious minorities for recognition of a right to discriminate against gay people even in the delivery of public services. No wonder Terry Sanderson of the National Secular Society is concerned: I think he’s right about the implications of the ruling for secularism. Let’s hope the EAT reverses it.
A final thought: if as the Tribunal says, Ms. Ladele’s stance is based on her belief that marriage is a life-long bond between a man and a woman, why didn’t she kick up this fuss about marrying divorcees?
A similar “employment tribunal” gave short shrift to a magistrate who objected to same-sex couples being allowed to adopt a child:
http://www.thinkinganglicans.org.uk/archives/002714.html
Hiya Carl,
This is totally off topic, I’m afraid, but I am having horrendous problems with my blog – its been hijacked by a guy called Paul Masterson, and for the moment I can do nothing about it; my url has therefore changed – it is no longer lawminx.blogspot.com but minx610.blogspot.com, so you’ll have to ammend your link to me, Im afraid!!
(*rushes off, stressed, to tell everyone else of this catastrophe*!!!)
Done, Minxface. What a pain? Who is the guy and what’s he up to? Any idea?
Judgment read and now covered in my blog. What a terrible decision!
Minx – imagine if all your blawging barrister friends went round Masterson’s house in full robes, knocking on his door and shouting. Just an image for you.
Points well put – my letter to Islington Council urging them to appeal includes the following:
I can therefore be assured that Lillian refused to perform civil partnership ceremonies between heterosexual partners where the women had recently had a period; or when the male partner had ejaculated. I assume that Lillian refused to perform a marriage when the male partner was not circumcised or if either partner had consumed shell fish, eaten certain fowl, eaten pork or rabbit.
I further assume that she refused to marry or perform civil partnerships when either partner had performed sorcery, undertaken prostitution or committed adultery.
Didn’t Islington lose mainly because they had refused to specifically address her complaint rather than because of its actual validity? They thought that referring ther to the Dignity For All policy was response enough but the law states otherwise. It meant that she could portray themas an organization that ignored religiously based complaints.
Plus management and her co-workers did behave disgracefully by posting protected data about her on the internet.
In a sense you’re right, anonymous, although I don’t think one can get away from the fact that, on the Tribunal’s approach, it’s difficult to imagine how a council can ever require an objecting Christian to carry a civil partnership ceremony. So I don’t think it’s as simple as saying this was about the way her complaint was dealt with: I think the ruling is more confused than that. The Tribunal seems to think that the council failed to deal with her complaint properly in that it didn’t compromise with her.
Anyway, how can a breach of confidence be direct discrimination? It doesn’t make sense unless Islington is just leaking stuff about Christians because they’re Christians. The way the tribunal deals with it is obviously confused (para. 56): it compares her treatment to the way a hypothetical person complaining of another type of discrimination would have been treated, when the real comparison should be whether she was treated differently from a non-Christian or non-religious person who refused to carry out civil partnerships.
In any event, there must be something wrong with an analysis that says (1) you can lawfully have a policy requiring registrars to carry out CPs but (2) if a registrar objects and you enforce your policy, you act unlawfully. That doesn’t make sense. That’s why I say that in finding (2), the Tribunal has by implication found against (1).
I really think this is an awful ruling, anon., hopelessly confused, and the more I think about it the more I think it’s bound to be reversed on appeal. The starting point ought to have been reg. 3(1)(b) of the regs. (para. 79 of the ruling) because this is all about indirect discrimination really.
Great summary Carl. I’ve linked to it and I think you are right, it is one for the EAT.
Looking at the judgement it seems to me that the employer was in a no-win situation. The wording on harassment in the Equality Regulations is so broad that Islington could have been accused of allowing a homophobic environment to persist had it not taken action against Miss Ladele.
If Islington had not disciplined Lillian Ladele, would the two gay staff members have been able to bring a harassment case? I bet they would at least have raised an internal grievance.
“The Tribunal seems to think that the council failed to deal with her complaint properly in that it didn’t compromise with her.”
The way I understood it was that the council weren’t under an obligation to compromise but they were under an obligation to counter the argument. Assumedly they didn’t as they thought that their policy was so obviously not based on religious discrimination that it wasn’t worth stating. It was a mistake as the tribunial upheld unanswered complaints. Had they specifically answered her compliant they would have a case to argue in the tribunial based on what most people would see as commonsense – the policy was no way to do with religion.
I think the tribunial acted according to the law but the law itself is quite ridiculous. The employer is expected to answer every complaint specifically and has to prove that it is not discriminating. Excuse me as I’m not an expert but a layman whoalways thought “innocent until proven guilty” so how do you do that?????!!! or does this confuse fine legal minds too?
Religious discrimination is always going to be hazy area and placing the burden of proof on an employer to prove they weren’t discriminating is indeed a heavy one. If they don’t respond, then they are going to be crucified and it will lead to perverse looking judgements but it’s hard to blame the tribunial for that.
I think I’m beginning to understand this case now. It seems that once an employer is guilty of one instance of discrimination, the burden of proof switches for subsequent instances. Ladele proved single instance because her complaint of discrimination on religious grounds was treated castly different to her co-workers complaint on discrimination by sexual orientation. She received no reply, they recieved information on her to post on the internet.
This was deemed religious discrimination and thus gave her a trump card for all the subsequent instances. Once the burden of proof is reversed, the employer does not a stand cat in hell’s chance. The burden switching has been used in cases of sex discrimination, it’s hard enough to prove you’re not a sexist, proving you’re not religious bigot is nye on impossible. After they lost round one the tribunial turned into the Spanish Inquisition for Islington Council.
But was the original instance religious discrimination? or just a case of an employer behaving very badly to one individual? It wasn’t a different religion who had favourable treatment but a couple of Gays, is that a religion? or can there be comparision between the treatment of Gays and Christians?
It’s not quite that, anon.. It’s not that one act of discrimination shifts the burden.
First, here are the regs..
Reg. 6(2) makes it unlawful for an employer to discriminate against an employee by subjecting her to any detriment. Ms. Ladele claimed she was subjected to a number of detriments, e.g. being disciplined and having her confidential info. leaked.
Under reg. 29, if the employee proves facts from which the Tribunal can infer discrimination, then the burden shifts: the employer must explain him of herself. This provision is common in discrimination legislation: it’s meant to make things fair.
The Tribunal thought in relation to all the detriments she suffered that it could infer discrimination, so that the burden of proof shifted. Look at the way it deals with disciplinary proceedings in paras. 58 and 59: we can infer discrimination, therefore the burden shifts; the employer can’t say it didn’t do it, so she wins.
But the problem is that the Tribunal has made a horlicks of what amounts to discrimination in the first place. The burden of proof only shifts if reg. 29 applies; reg. 29 only applies to discrimination; so you have to analyse how the detriments are discriminatory. At para. 52 the Tribunal just gets mixed up and treats all this as direct religious discrimination under reg. 3(1)(a) (you’re Christian, so you’re sacked) when it’s obvious the whole complaint is about indirect religious discrimination under reg. 3(1)(b) (you have to do civil partnerships or you’re sacked). Indirect discrimination can be justified (see reg. 3(1)(b)(iii)) but the way the Tribunal has mixed up direct and indirect discriminaiton means it’s missed out justification, and so felt itself able to infer discrimination far earlier and more easily than it should have.
Para. 58 beautifully illustrates the Tribunal’s confusion: it describes the indirect discrimination in the first sentence (it’s not coz she’s a Christian, it’s coz she won’t do CPs), but then in the last sentence it concludes without considering any possible justification that discrimination, i.e. direct discrimination, has occurred.
On indirect discrimination, para. 87 shows a totally inadequate treatment of justification, too. It is obsessed by the idea of fairness here consisting of balancing Ms. Ladele’s rights against those of gay people (quite the wrong approach in my view) and the idea of balancing these rights but the legitimate aim is wider than that it’s about providing a service to the whole public – and proportionality goes beyond that balance. It’s about whether an employer can reasonably take the view that its registrars have to be able to do CPs.
Clearish? I hope so. One of the difficulties is that this ruling is really so shot through with confusions that it’s not easy to achieve easily understood clarity in explaining how wrong it is!
It’s clearish, I see your point about the confusion between direct and indirect discrimination. I became confused as the first instance (the data leaking) is the only one where I can see that the council is in the wrong and not too sure why that counts discrimination. The others are beyond me but it’s probably best to stop trying to figure. I had broadly assumed that Ms Ladelle’s case was mainly based on the data leaking and the council’s mistake of not specifically answering her complaint.
and thanks for your helful comments!
You’re right! I don’t see how the leaking counts as discrimination either. It’s not. This just shows how the Tribunal’s unspeakably bad legal “working out” has resulted in a perverse outcome.
What they’ve done is think “Gay people said she was discriminating against them, and their info wasn’t leaked; but she said they were discriminating against her, and hers was leaked. Ergo, she as Christian was subject to a detriment”.
What they should have done is asked whether a Jew, Muslim or atheist who refused to conduct CPs and against whom gay people had complained would have been treated differently from the way Ms. Ladele was treated, and therefore whether the detriment of having her info leaked was a discriminatory act. I don’t think there’s any reason to suppose they would have been treated any differently.
Yet for the other instances, the judgement keeps stating “the respondent could not prove that they did not commit the act”. What puzzles me is that they don’t appear to be even trying to not prove it. Is that because they said nothing to her complaints at the time bar refering her to the Dignity For All policy? If they had responded with a sensible message about exactly why they her predicament had nothing to do with religion, would they have been in a stonger position at the trbunial? If not I’m struggling to see what they could have done to prove they did not commit these offences. It’s almost an impossibility.
Yes, quite. There’s absolutely no dispute about what happened. And no dispute that it is potentially indirect discrimination – it obviously is as the requirement to do CPs clearly affects Christians like Ms. Ladele differently from most people. The issue is whether the requirement to do CPs is objectively justified. If it is, it’s not discrimination in the legal sense of the regs, so there is no detriment to which reg. 6 applies, and the burden of proof never shifts.
So correct legal analysis of what type of discrimination is being alleged is logically prior to questions of the shifting burden of proof. By getting that analysis wrong, as I mentioned earlier the tribunal has “jumped over” the justification stage, which is why it seems as though Islington have no way of defending themselves. The tribunal has missed that bit out.
Thanks for your useful analysis, much of which I agree with and all of which is inciteful.
I feel I must take issue with your final tought, though. There is no requirement (in law or faith) for religious convictions to be intellectually consistent. Not many of us hold ideas which could not be logically unpicked.
Perhaps this comment suggests you don’t approach this case from a neutral standpoint?
Thanks Again Carl,
If you’re willing to answer more quations, I’ve found another similar case that highlights some points that I (and assumedly many other people find difficult). It is worth quoting as it is simpler than Ms Ladele’s case as there are no co-workers taking actions against this man. It’s a straight forward dispute between worker and manager.
“A Leeds tribunal has ruled in favour of T&G member Mohammed Sajwal Khan, who was sacked after he took extended leave to make a once-in-a-lifetime religious pilgrimage (hajj) to Mecca.
Mr. Khan had worked for NIC Hygiene as a bus cleaner for more than seven years when he decided to make the pilgrimage, and applied to use all his annual leave allowance. When he did not get a response his union, the T&G, advised him to submit a written request. As Mr. Khan still did not receive a response, his manager said he could assume the leave had been granted. However on his return to the UK from the six-week trip, Mr. Khan was suspended without pay and later sacked.
The tribunal found in Mr. Khan’s favour and awarded him £10,000 in compensation, however he is unlikely to receive the full sum due to the company’s financial problems. Mr. Khan has said that he and the union fought on the principle rather than the money.
A Leeds tribunal has ruled in favour of T&G member Mohammed Sajwal Khan, who was sacked after he took extended leave to make a once-in-a-lifetime religious pilgrimage (hajj) to Mecca.
Mr. Khan had worked for NIC Hygiene as a bus cleaner for more than seven years when he decided to make the pilgrimage, and applied to use all his annual leave allowance. When he did not get a response his union, the T&G, advised him to submit a written request. As Mr. Khan still did not receive a response, his manager said he could assume the leave had been granted. However on his return to the UK from the six-week trip, Mr. Khan was suspended without pay and later sacked.
The tribunal found in Mr. Khan’s favour and awarded him £10,000 in compensation, however he is unlikely to receive the full sum due to the company’s financial problems. Mr. Khan has said that he and the union fought on the principle rather than the money.”
http://www.hrmguide.co.uk/diversity/religious-discrimination-case.htm
It’s hard not to feel sympathy with the bus cleaner who has saved hit holdays and money to go to Mecca but where does the religious element arise? Management verbally agreed he could have his holiday and were tardy with written persmission and then sacked him. Does the religious element arise in any case where an employee specifically introduces it thus requiring management to specifically address it?
Where does it leave other non religious workers? Can they demand the same rights as the religious for non-religious reasons?
Would a bus cleaner in the same situation but taking holiday for non-religious reasons face different treatment from the courts? Isn’t that discrimination?
I admit not to being neutral when it comes to religion, Jamie: I’m a decided atheist and a secularist. I have no problem with religion of course, and have no problem with laws prohibiting discrimination on grounds of religion. But I am opposed to the increasingly militant and demanding claims especially of fundamentalist Christians and Muslims, especially when they want to be exempted from rules which would apply to everyone else, including anti-discrimination rules. This case is an example of that.
In any event, though, I give independent legal views without regard to that: if I thought the Tribunal’s ruling were legally right, I’d say so. I deal with this stuff on the legal merits and disagreement with me needs to be on the legal merits, too!
if as the Tribunal says, Ms. Ladele’s stance is based on her belief that marriage is a life-long bond between a man and a woman, why didn’t she kick up this fuss about marrying divorcees?
I suspect she’d have been keen to stay well away from this whole area, since it turns out her deeply held Christian morals were otherwise engaged some years ago, when she had a child out of wedlock. I trust she’ll follow this action by suing for council employees to be given the right to refuse to deal with unmarried mothers such as herself. Otherwise she’d be a bit of a stinking bloody hypocrite, wouldn’t she?
Anon., it’s a bit difficult to comment on Mr. Khan’s case without seeing the Tribunal’s decision, but on the face of it his case looks a bit different. If the firm had a policy of not allowing six weeks holiday all at once, then it could be justified – but only if the refusal was proportionate. It’d be difficult to justify having an out an out rule like that especially if you weren’t prepared even to speak to the worker about the arrangements (as it seemed the firm didn’t). So it could be indirect discrimination. Alternatively if the firm didn’t have such a policy, and others had been granted this leave or else you could reasonably imagine they might be, then I think Mr. Khan has established facts from which you can infer the refusal and sacking were on religious grounds. So then the burden would be on the employer to show it wasn’t.
So I think that case is different from Ms. Ladele’s.
Hi Carl, am came across this discussion indirectly from the latest NSS Newline; it’s nice to see that it’s not just the laymen like myself that are infuriated by the case!
I’d like to ask a question, though: how far does “religious discrimination” go? In this case – errors of reasoning aside – it seems that the tribunal is accepting that hostility towards homosexual people is reasonable simply if one claims that one is religious?
To put it another way: she is basically making two statements which – to my atheist mind – are completely independent. Statement 1 is, “I do not want to provide a service to homosexuals”. Statement 2 is, “I self-identify as Christian”. However, given that sections of both the catholic and anglican churches do not oppose gay civil-ceremonies, how can she claim discrimination based on the second statement? If statement 2 was missing, she would simply be saying, “I’m a bigot”. But it seems that the legal grey area is around, “I’m a bigot, and superstitious”. How does that work?
“I’m a decided atheist and a secularist. I have no problem with religion of course, and have no problem with laws prohibiting discrimination on grounds of religion. But I am opposed to the increasingly militant and demanding claims especially of fundamentalist Christians and Muslims, especially when they want to be exempted from rules which would apply to everyone else, including anti-discrimination rules”
Interesting comment, I’m a secularist who isn’t an atheist, nor any main stream religion. I just have my own vision of God but I feel that I’m disadvantaged by these laws that are opposed to the concept of individualistic belief. Their basic premise appears to be that if you share your views with others, then you count otherwise you can go hang. Aren’t fundamentalist groups always going to tak eadvantage of these laws. How can they ever be fair? For me it’s ganging up mentality and afront to liberal society.
I also wonder if more and more people are idenifying as Atheist because Government take this view of bunching people into religions.
Absolutely correct I have to agree with you.
Regards,
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