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No discrimination or unfair dismissal of Christian Relate counsellor

Posted on 10th December 2009
Case law

There was no direct or indirect discrimination on religious grounds of a Christian Relate counsellor who refused, because of his religious beliefs, to provide counselling to same-sex couples.

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McFarlane v Relate Avon Ltd

Background

The EAT had to decide if the employee had been discriminated against on religious grounds and if he had been unfairly dismissed after he had refused to provide counselling services to same-sex couples.

Mr McFarlane is a Christian and was employed as a Relate counsellor. During his employment he advised Relate that he could not work within the terms of Relate's equal opportunities policy. He said his Christian beliefs prevented him from helping same-sex couples. Nevertheless, after discussing the issue with Relate he agreed to see same-sex couples and observe the equal opportunities policy and problems which arose would then be discussed with his manager. It soon became clear that Mr McFarlane had not changed his stance. After a disciplinary hearing he was dismissed for gross misconduct as Relate no longer trusted Mr McFarlane to perform his role in compliance with its equal opportunities policy and his professional code of conduct.

The decision

The Employment Appeal Tribunal upheld the employment tribunal's decision that Relate had not discriminated Mr McFarlane in breach of The Employment Equality (Religion or Belief) Regulations 2003 nor had he been unfairly dismissed.

The decision | direct discrimination

The correct comparator was another counsellor who, for reasons unrelated to Christianity, was believed by Relate to be unwilling to provide counselling to same-sex couples and was therefore unwilling to abide by its equal opportunities policy. There was no direct discrimination because Relate has a strong and well known policy of providing counselling on a non-discriminatory basis. Another counsellor who showed the same potential lack of commitment to its core values would be treated in exactly the same way and would also be dismissed.

The EAT agreed that Mr McFarlane had not been dismissed because of his religion but because of his actions, which were the manifestation of his religious belief.

The decision | indirect discrimination

Relate's requirement that its counsellors conform to its equal opportunities policy and a professional code of conduct amounted to a "provision, criterion or practice" which put persons of the same religion or belief as Mr McFarlane at a particular disadvantage and was therefore potentially indirectly discriminatory.

The EAT held that the tribunal was correct in deciding that Relate's requirements could be objectively justified as a proportionate means of achieving the legitimate aim, namely providing a full range of counselling services to all sections of the community, including same-sex couples.

The decision | unfair dismissal

The dismissal was also fair based on Mr McFarlane's conduct of refusing to work within the scope of the equal opportunities policy.

Comment

This case illustrates that the direct discrimination provisions of the Religion or Belief Regulations protect an employee's right to hold a religion or belief, but not their right to manifest that religion or belief as they choose. In relation to the claim of indirect discrimination it was important that Relate could show that it held a strong commitment to its equal opportunities policy.

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