In McFarlane v Relate Avon Ltd, the EAT confirmed that Relate (an organisation committed to providing counselling to couples) did not discriminate against a Christian employee who was dismissed because he did not want to provide psycho-sexual counselling to same sex couples. It is clear from this and other similar decisions that the Religion and Belief Regulations protect an employee’s right to hold a religion, but not the right to manifest that religion as they see fit if these conflict with their employer’s ethos or public role.
Mr McFarlane is a Christian and the former elder of a large multicultural church. He is opposed to same sex sexual activity. He signed up to Relate’s equal opportunities policy and agreed to adhere to the non discriminatory principles of good practice set down by the British Society for Sexual and Relationship Therapy.
Relate offers its services to same sex couples in precisely the same way as to heterosexual couples and all counsellors have to work with anyone they are assigned to help. This initially did not cause any problems for Mr McFarlane who did not object to providing same sex relationship counselling. Mr McFarlane decided to develop his counselling skills to include psycho-sexual therapy, but asked to be excused from offering this type of counselling to same sex couples. Relate were concerned that this was in conflict with their principles and asked him to confirm that he would carry out such work. Mr McFarlane confirmed his willingness to do so. However, Relate did not believe that his assurances were genuine because of comments that he later made to his manager. He was therefore called to a disciplinary meeting and dismissed because they believed he had no intention of complying with Relate’s policies where they conflicted with his own beliefs. He brought claims against Relate for, amongst other things, discrimination because of his Christian beliefs.
He was unsuccessful and appealed to the EAT. The EAT accepted that Relate had not dismissed Mr McFarlane because of his religion but because of his actions which were a manifestation of that belief. Relate had a strong commitment to providing counselling on a non-discriminatory basis and another counsellor who showed the same potential lack of commitment to its core values would be treated in exactly the same way. It had not therefore directly discriminated against him.
The EAT then examined whether there was indirect discrimination. The policy of requiring all counsellors to provide services on a non-discriminatory basis was a practice which put Christians at a particular disadvantage. However, Relate could justify their policy because it had a clear commitment to provide services to the public on a non-discriminatory basis. It did not have to compromise its fundamental beliefs, by for example, asking another employee to take on Mr McFarlane’s same sex couples (which presumably it would have been able to accommodate).
Implication for employers
The decision is important and helps to provide guidance to employers on how to deal with employees who do not want to undertake some of their duties because they conflict with their religious beliefs. Employers are entitled to require their employees to comply with their internal policies where these relate to the employer’s core obligations or business, even if those policies require the employee to act in a way which conflicts with their own personal beliefs.
The facts of this case and the decision reached are similar to those of Ladele v London Borough of Islington which involved a registrar who refused to perform same sex marriages as these were contrary to her Christian beliefs. In Ladele, the Council was able to justify its decision to sack Ms Ladele without exploring whether someone else could undertake same-sex marriages because, as a public authority, it was committed to promoting equal opportunities including the rights of the gay community. The EAT in this case drew no distinction between the Council’s aim and that of Relate to provide a full range of services to the public, regardless of their sexual orientation.
The key point is that the internal policy in both cases did not impinge on Mr McFarlane’s or Ms Ladele’s religious beliefs which they were free to hold and worship.