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?