It always sounds terribly smug to say ‘I told you so’ but I just can’t resist it.
Last October I predicted that there would be conflicts between competing rights in the workplace. Already, we have seen trouble between different religions in the workplace. Then, yesterday, the Central London Employment tribunal issued a judgement which the FT claims could redraw the boundaries of anti-discrimination laws.
When the law changed to allow same-sex civil partnerships, Lillian Ladele, a registrar for the London Borough of Islington and a devout Christian, refused to officiate at these ceremonies. Her employers tried first to persuade her and then to force her to do so by using the council’s disciplinary procedure. Miss Ladele then claimed that her employer was discriminating agaist her on the grounds of her religion. The tribunal agreed and found in her favour, which means that Islington will have to pay her compensation.There is no limit to the damages that can be awarded for religious discrimination, so this could end up costing the taxpayers of Islington a lot of money.
So what are the implications of this case?
In employment law there has long been the concept of a ‘reasonable management request’ – the idea that, within reason, a manager can ask an employee to do anything that would reasonably fall withing his or her job specification. From the point of view of the managers at Islington, Miss Ladele was employed to carry out civil ceremonies. The law had changed to allow same-sex ceremonies but the nature of the registrar’s job had not. Therefore, in the view of her employer, when Miss Ladele refused to officiate at same-sex ceremonies, she was disobeying a reasonable management instruction.
So does this ruling now mean that management requests can be refused on the grounds of religious belief? Has it, as some people are saying, changed the law so that people can simply refuse to perform a part of their jobs on religious grounds? Strictly speaking, of course, it hasn’t because ET rulings are not binding on other courts. However, judgements are used as guidance and the effect of this ruling will almost certainly make employers more reticent about challenging religious claims in the workplace.
The judgement makes interesting reading. After Miss Ladele had refused to carry out the civil ceremonies, two gay colleagues, Dion and Viktoria, complained that they felt discriminated against and intimidated by what they regarded as her homophobic attitudes.
Now the Employment Equality (Sexual Orientation) Regulations 2003 define harassment as “conduct….creating an intimidating, hostile, degrading, humiliating or offensive environment”.
The Employment Equality (Religion or Belief) Regulations 2003 contain, you guessed it, exactly the same wording. It was under this law that the tribunal found against the London Borough of Islington.
But, given the complaints against Lillian Ladele from the two gay members of staff, one is left wondering whether the employer was in a no-win situation. If Islington hadn’t taken action against Miss Ladele, could Dion and Viktoria have gone to a tribunal and won a case on the grounds that their employer had allowed a homophobic environment to persist? Wasn’t this simply a case of who went to the tribunal first?
And therein lies the problem. The equality legislation has created conflicting rights and the employer is stuck in the middle. Of course, Islington Council will appeal and the tribunal’s judgement might be overturned but it is only a matter of time before another similar case is brought, perhaps, this time, by a gay employee.
This legislation will continue to be a headache for managers, although it will, no doubt, help to keep an army of HR managers and equality advisers in jobs. And, of course, one or two claimants and a lot of employment lawyers will get very rich.