Manifest belief

McFarlane v Relate Avon Ltd

The Employment Equality (Religion or Belief) Regulations 2003 outlaw discrimination on the grounds of religion or belief. However, the Court of Appeal has said in McFarlane v Relate Avon Ltd that it was not discriminatory for an employer to dismiss a committed Christian for refusing to counsel same-sex couples.

Basic facts

Mr McFarlane, a committed Christian, worked as a counsellor for Relate, an organisation offering relationship counselling. In keeping with the British Association for Sexual and Relationship Therapy, Relate has an equal opportunities policy which requires them to ensure that no one should be treated less favourably “on the basis of characteristics such as sexual orientation”.

When Mr McFarlane asked to be exempted from working with same-sex couples with sexual issues, Relate refused and subsequently dismissed him. Mr McFarlane lodged a number of claims, including direct and indirect discrimination under the religion or belief regulations.

Tribunal and EAT decisions

The tribunal decided that Mr McFarlane was dismissed not because of his faith but because of his refusal to comply with Relate’s equal opportunities policy. It said that another counsellor who, for reasons not related to religion, was unwilling to provide psychosexual therapy for same sex couples would have been treated the same way. It also rejected his indirect discrimination claim, saying that his dismissal was a proportionate means of achieving a legitimate aim.

The EAT upheld the tribunal’s decision (weekly LELR 151), saying that although Mr McFarlane was motivated by a wish to manifest a religious belief, that did not mean that his belief was also the motivation behind his employer's action.

Relying on the decision in London Borough of Islington v Ladele (weekly LELR 103), the EAT also dismissed his claim of indirect discrimination. It said there was no reason to treat Relate any differently from the Council in Ladele which required all its registrars to perform civil partnerships, irrespective of their religious beliefs.

Court of Appeal decision

Refusing leave to appeal the EAT’s decision the Court of Appeal said that there was nothing to support Mr McFarlane’s argument that the decision in Ladele had been made per incuriam (in other words, that it had not been decided in line with the proper authorities). In that case the Council had not been motivated by Ms Ladele’s religious beliefs but because of her refusal to officiate at civil partnerships. Mr McFarlane’s case could not be distinguished from Ladele.

The judge then dealt with the statement submitted to the Court by Lord Carey, a senior church official on behalf of Mr McFarlane. He had argued that by finding the manifestation of religious faith as “discriminatory”, Christians were effectively being compared by the courts with “bigots”.

For his part, the judge said that Lord Carey’s observations were misplaced and arose from a misunderstanding of the law of discrimination.

He explained that, in cases of indirect discrimination, the law “forbids discriminatory conduct not by reference to the actor's motives, but by reference to the outcome of his or her acts or omissions”.

He said that although the role of the law was to protect people’s right to “hold and express a belief” (including religious beliefs), that did not mean protecting a belief just because it was “espoused by the adherents of a particular faith”. That, he said, would be “deeply unprincipled” and would amount to giving “effect to the force of subjective opinion”.