McFarlane v Relate Avon Ltd

Last updated

McFarlane v Relate Avon Ltd
Royal Coat of Arms of the United Kingdom.svg
Court Court of Appeal of England and Wales
Decided29 April 2010
Citations [2010] EWCA Civ 880; [2010] I.R.L.R. 872; 29 B.H.R.C. 249
Case history
Related actionLadele v Islington LBC [2009] ICR 387
Court membership
Judge sitting Laws LJ
Case opinions
A relationship counsellor dismissed for refusing to counsel same sex couples on sexual matters because of his Christian beliefs did not suffer discrimination under the Employment Equality (Religion or Belief) Regulations 2003. Although the law protected a person's right to hold or express their religious beliefs, it did not protect the substance or content of those beliefs on the ground only that they were based on religious precepts.

McFarlane v Relate Avon Ltd[2010] EWCA Civ 880; [2010] IRLR 872; 29 BHRC 249 was an application in the Court of Appeal of England and Wales for permission to appeal against a decision of the Employment Appeal Tribunal, that a relationship counsellor dismissed for refusing to counsel same sex couples on sexual matters because of his Christian beliefs did not suffer discrimination under the Employment Equality (Religion or Belief) Regulations 2003. The application was heard by Lord Justice Laws, who issued his decision on 29 April 2010 refusing the application.

Contents

The case attracted significant media attention due to the issues involved, particularly the balance of religious and LGBT rights, the intervention of former archbishop of Canterbury George Carey, Lord Carey of Clifton, who provided a witness statement in support of the application, and the judge's strongly worded rebuttal of the applicant's submissions. [1] [2] [3] [4]

Background

Gary McFarlane was a 48-year-old Christian from Bristol, [1] employed as a relationship counsellor by the Avon branch of Relate, a charity providing relationship support including counselling for couples, families, young people and individuals, sex therapy, mediation and training courses. He joined the organisation in August 2003, and a condition of his employment was acceptance of the group's equal opportunities policy, which required him to ensure "that no person... [receive] less favourable treatment on the basis of characteristics, such as... sexual orientation...". [5] Relate was also a member of the British Association for Sexual and Relationship Therapy, whose Code of Ethics required the therapist to "avoid discrimination... on grounds of... sexual orientation."

Although the applicant had found himself capable of assisting same-sex couples in counselling where discussion of sexual issues was not involved, in September 2006 he applied to undertake a diploma course in psycho-sexual therapy (PST) (a new name for sex therapy [6] ). Managers at Relate considered his raising of a possible conscionable objection to assisting same-sex couples with sexual issues to be incompatible with the organisation's equal opportunities policy and would reduce the number of couples he were able to help. On 12 December 2007, the applicant was asked to confirm in writing he would continue to counsel same-sex clients in both relationship counselling and PST with regard to all the sexual issues they may have brought, and that he would agree to carry out relationship work where it involved same-sex sexual issues.

In January 2008, McFarlane responded that he was unable to confirm this, and disciplinary proceedings were initiated. During these he confirmed that he would provide the required services to same-sex couples and the proceedings were ended. In March of that year however, he indicated to his supervisor that he might find it difficult to carry out such work, and on 18 March 2008, the applicant was dismissed from his post on the grounds: [5]

That on 7 January 2008 you stated to Relate that you would comply with its Equal Opportunities policy and Professional Ethics policy in relation to work with same-sex couples and same-sex sexual activities, when you had and have no intention of complying with Relate's policies on those issues.

The applicant undertook an unsuccessful internal appeal against dismissal, and subsequently applied to the Employment Tribunal, claiming discrimination on the ground of religion or belief, harassment, unfair dismissal and wrongful dismissal. The claim of wrongful dismissal was accepted on procedural grounds, but the other claims were dismissed, and the applicant appealed against the dismissal of the claims of discrimination and unfair dismissal to the Employment Appeal Tribunal.

Employment Appeal Tribunal

McFarlane's action before the Employment Appeal Tribunal was heard on 9–10 September 2009, and the judgement issued on 30 November. [7] The Tribunal found that the applicant had suffered neither direct nor indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003 or the Human Rights Act 1998. The Tribunal made particular reference to remarks by Lord Bingham in the House of Lords decision in R (Begum) v Denbigh High School , that: [7]

The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to observe his or her religion without undue hardship or inconvenience.

Reference was also made to Ladele v London Borough of Islington, a Christian registrar's unsuccessful appeal against dismissal for refusing to officiate civil partnership ceremonies.

Court of Appeal

McFarlane applied to the Court of Appeal to be allowed to appeal the decision of the Employment Appeal Tribunal, however his application was refused by Lord Justice Elias on 30 January 2010. A renewed application was made before Lord Justice Laws on 15 April 2010. It contained a request that his case be heard before a specially constituted court comprising the Lord Chief Justice and five Lords Justices with proven sensibility towards religious issues. A witness statement was also submitted in support of the application by the former archbishop of Canterbury, George Carey, Lord Carey of Clifton. The statement supported Mr McFarlane's request for a specially constituted court, and also sought to refute suggestions that Christian teaching on same-sex unions was discriminatory and that such views were equivalent to homophobia. The application was refused in a judgement delivered on 29 April 2010.

Lord Justice Laws stated that:

the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled.

As religious beliefs were by their nature impossible to prove, they were necessarily subjective, and could therefore only be considered to bind the behaviour of the believer and not that of anyone else. He went on to state:

The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

The application was refused.

Consequent events

Mr McFarlane appealed to the European Court of Human Rights on freedom of religion grounds. The court rejected his complaint in January, 2013. [8]

See also

Related Research Articles

<span class="mw-page-title-main">Christian Institute</span>

The Christian Institute (CI) is a charity operating in the United Kingdom, promoting a conservative evangelical Christian viewpoint, founded on a belief in Biblical inerrancy. The CI is a registered charity. The group does not report numbers of staff, volunteers or members with only the former director, Colin Hart, listed as a representative. Hart died in March 2024, leaving the directorship vacant. According to the accounts and trustees annual report for the financial year ending 2017, the average head count of employees during the year was 48 (2016:46).

The right to freedom of religion in the United Kingdom is provided for in all three constituent legal systems, by devolved, national, European, and international law and treaty. Four constituent nations compose the United Kingdom, resulting in an inconsistent religious character, and there is no state church for the whole kingdom.

<span class="mw-page-title-main">Freedom of religion in Canada</span>

Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.

Christopher Stephen Myles Kempling is a Canadian educator who was suspended by the British Columbia College of Teachers and disciplined by the Quesnel School District for anti-gay comments in letters to the editor of the Quesnel Cariboo Observer. Kempling challenged the suspension in court, arguing that his right to freedom of expression had been violated. The British Columbia Court of Appeal ruled against him, ruling that limitations on his freedom of expression were justified by the school's duty to maintain a tolerant and discrimination-free environment. Kempling filed a complaint with the British Columbia Human Rights Tribunal alleging that the disciplinary action taken against him by the school district infringed his freedom of religion; this complaint was dismissed on similar grounds.

United Kingdom employment equality law is a body of law which legislates against prejudice-based actions in the workplace. As an integral part of UK labour law it is unlawful to discriminate against a person because they have one of the "protected characteristics", which are, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, pregnancy and maternity, and sexual orientation. The primary legislation is the Equality Act 2010, which outlaws discrimination in access to education, public services, private goods and services, transport or premises in addition to employment. This follows three major European Union Directives, and is supplement by other Acts like the Protection from Harassment Act 1997. Furthermore, discrimination on the grounds of work status, as a part-time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union, or with advice from a solicitor, ACAS or the Citizens Advice Bureau a claim may be brought in an employment tribunal. The Equality Act 2006 established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.

<i>Eweida v United Kingdom</i>

Eweida v United Kingdom[2013] ECHR 37 is a UK labour law decision of the European Court of Human Rights, concerning the duty of the government of the United Kingdom to protect the religious rights of individuals under the European Convention on Human Rights. The European Court found that the British government had failed to protect the complainant's right to manifest her religion, in breach of Article 9 of the European Convention. For failing to protect her rights, the British government was found liable to pay non-pecuniary damages of €2,000, along with a costs award of €30,000.

McClintock v Department of Constitutional Affairs [2008] IRLR 29, Times 5 December 2007, is a UK employment discrimination law case concerning freedom of religion under Article 9 of the European Convention on Human Rights, unfair dismissal and the new Employment Equality Regulations 2003.

Redfearn v Serco Ltd [2006] EWCA Civ 659 and Redfearn v United Kingdom [2012] ECHR 1878 is a UK labour law and European Court of Human Rights case. It held that UK law was deficient in not allowing a potential claim based on discrimination for one's political belief. Before the case was decided, the Equality Act 2010 provided a remedy to protect political beliefs, though it had not come into effect when this case was brought.

<span class="mw-page-title-main">Christian Legal Centre</span> UK Christian legal support organization

The Christian Legal Centre (CLC), a company founded in December 2007, has acted in a number of high-profile cases on behalf of evangelical Christians in the United Kingdom. Its sister organisation is Christian Concern. Observers believe that the centre has adopted tactics from wealthy evangelical groups in the US, notably the Alliance Defense Fund, and raise questions about its funding. It opposes homosexuality, same-sex marriage, pre-marital sex, and pornography.

<span class="mw-page-title-main">LGBTQ rights in West Virginia</span>

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of West Virginia face legal challenges not faced by non-LGBT persons. Same-sex sexual activity has been legal since 1976, and same-sex marriage has been recognized since October 2014. West Virginia statutes do not address discrimination on account of sexual orientation or gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBTQ people is illegal.

Weaver v National Association of Teachers in Further and Higher Education [1988] ICR 599 EAT is a UK labour law case, concerning racial discrimination.

<span class="mw-page-title-main">LGBTQ rights in Washington (state)</span>

The state of Washington is seen as one of the most progressive states in the U.S. in regard to lesbian, gay, bisexual, transgender and queer (LGBTQ) rights; with jurisprudence having evolved significantly since the late 20th century. Same-sex sexual activity was legalized in 1976. LGBTQ people are fully protected from discrimination in the areas of employment, housing and public accommodations; the state enacting comprehensive anti-discrimination legislation regarding sexual orientation and gender identity in 2006. Same-sex marriage has been legal since 2012, and same-sex couples are allowed to adopt. Conversion therapy on minors has also been illegal since 2018.

<span class="mw-page-title-main">LGBTQ rights in Maine</span>

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of Maine have the same legal rights as non-LGBTQ people. Same-sex marriage has been recognized in Maine since December 2012, following a referendum in which a majority of voters approved an initiative to legalize same-sex marriage. Discrimination on the basis of sexual orientation and gender identity is prohibited in the areas of employment, housing, credit and public accommodations. In addition, the use of conversion therapy on minors has been outlawed since 2019, and joint adoption is permitted for same-sex couples.

<span class="mw-page-title-main">LGBTQ rights in Indiana</span>

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights in the U.S. state of Indiana have been shaped by both state and federal law. These evolved from harsh penalties established early in the state's history to the decriminalization of same-sex activity in 1977 and the legalization of same-sex marriage in 2014. Indiana was subject to an April 2017 federal court ruling that discrimination based on sexual orientation is tantamount to discrimination on account of "sex", as defined by the Civil Rights Act of 1964. The ruling establishes sexual orientation as a protected characteristic in the workplace, forbidding unfair discrimination, although Indiana state statutes do not include sexual orientation or gender identity among its categories of discrimination.

<span class="mw-page-title-main">LGBTQ rights in Kentucky</span>

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of Kentucky still face some legal challenges not experienced by other people. Same-sex sexual activity in Kentucky has been legally permitted since 1992, although the state legislature has not repealed its sodomy statute for same-sex couples. Same-sex marriage is legal in Kentucky under the U.S. Supreme Court ruling in Obergefell v. Hodges. The decision, which struck down Kentucky's statutory and constitutional bans on same-sex marriages and all other same-sex marriage bans elsewhere in the country, was handed down on June 26, 2015.

<span class="mw-page-title-main">LGBTQ rights in Kansas</span>

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of Kansas have federal protections, but many face some legal challenges on the state level that are not experienced by non-LGBTQ residents. Same-sex sexual activity is legal in Kansas under the US Supreme Court case Lawrence v. Texas, although the state legislature has not repealed its sodomy laws that only apply to same-sex sexual acts. The state has prohibited discrimination on the basis of sexual orientation and gender identity in employment, housing and public accommodations since 2020. Proposed bills restricting preferred gender identity on legal documents, bans on transgender people in women's sports, bathroom use restrictions, among other bills were vetoed numerous times by Democratic Governor Laura Kelly since 2021. However, many of Kelly's vetoes were overridden by the Republican supermajority in the Kansas legislature and became law.

<span class="mw-page-title-main">LGBTQ rights in Alaska</span>

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights in the U.S. state of Alaska have evolved significantly over the years. Since 1980, same-sex sexual conduct has been allowed, and same-sex couples can marry since October 2014. The state offers few legal protections against discrimination on the basis of sexual orientation and gender identity, leaving LGBTQ people vulnerable to discrimination in housing and public accommodations; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBTQ people is illegal under federal law. In addition, four Alaskan cities, Anchorage, Juneau, Sitka and Ketchikan, representing about 46% of the state population, have passed discrimination protections for housing and public accommodations.

<i>Ladele v London Borough of Islington</i> United Kingdom labour law case

Ladele v London Borough of Islington [2009] EWCA Civ 1357 is a UK labour law case concerning discrimination against same sex couples by a religious person in a public office.

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018), was a case in the Supreme Court of the United States that dealt with whether owners of public accommodations can refuse certain services based on the First Amendment claims of free speech and free exercise of religion, and therefore be granted an exemption from laws ensuring non-discrimination in public accommodations—in particular, by refusing to provide creative services, such as making a custom wedding cake for the marriage of a gay couple, on the basis of the owner's religious beliefs.

<i>Bull v Hall</i> UK discrimination and freedom of religious expression legal case

Bull and another v Hall and another[2013] UKSC 73 was a Supreme Court of the United Kingdom discrimination case between Peter and Hazelmary Bull and Martin Hall and Steven Preddy. Hall and Preddy, a homosexual couple, brought the case after the Bulls refused to give them a double room in their guesthouse, citing their religious beliefs. Following appeals, the Supreme Court held the rulings of the lower courts in deciding for Hall and Preddy and against the Bulls. The court said that Preddy and Hall faced discrimination which could not be justified by the Bulls' right to religious belief. It was held that people in the United Kingdom could not justify discrimination against others on the basis of their sexual orientation due to their religious beliefs.

References

  1. 1 2 "Christian counsellor loses court fight over sacking". The Guardian . 29 April 2010. Retrieved 4 December 2010.
  2. ↑ "Sacked Christian counsellor Gary McFarlane's appeal bid dismissed" . The Independent . 29 April 2010. Archived from the original on 12 May 2022. Retrieved 4 December 2010.
  3. ↑ "Christian sex therapist Gary McFarlane loses appeal bid". BBC News . 29 April 2010. Retrieved 4 December 2010.
  4. ↑ Christopher Booker (1 May 2010). "The divisive law of Lord Justice Laws". The Telegraph . Retrieved 4 December 2010.
  5. 1 2 "Copy of the official transcript of the Court of Appeal judgement". Employment Cases Update. Retrieved 4 December 2010.
  6. ↑ Tingle, Sarah. "What is Psychosexual Therapy?" . Retrieved 5 December 2010.
  7. 1 2 "Judgement of the Employment Appeal Tribunal". Employment Appeal Tribunal. 30 November 2009. Retrieved 4 December 2010.
  8. ↑ ECtHR Chamber judgment in cases nos. 48420/10, 59842/10, 51671/10 and 36516/10
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.