What is Reasonable, Practical and Proportionate?

Very often on our courses, we illustrate the positive and negative pendulum that can hold sway in a diverse society. Positively, you make an improvement for one individual or a group and you secure a spin off benefit for those outside the group. Removing debris from a footpath will make things safer for those with mobility issues but also will enhance the environment and help those carrying shopping or even pushing a pram.

But sometimes, you make an improvement in one area and create tension, resentment, jealousy and at worse a severe backlash. The battle of the sexes, the perceived notion that “they” are getting more benefits than me and impatience with those less able is all part of this potentially poisonous cocktail. But nowhere it seems is this negative backlash more to the fore than between those who hold genuinely religious beliefs and those who wish to be free to live their lives under the law as gay, lesbian or bisexual individuals.

In recent months, there seem to have been an avalanche of claims reaching tribunals reflecting these theological and secular tensions. The overarching lessons emerging from what have been largely employers victories are to be found in common sense key questions: “Have you carefully considered the complaint or request in front of you? And if you have, has your response been:-

  • Reasonable?
  • Practical?
  • Proportionate?”

Viewed against this backcloth, the following recent cases can be seen in real perspective: Miss Ladale v Islington Borough Council. The applicant, a devout Christian, was employed as a registrar with the local authority. Her duties included registering marriages. When the Civil Partnership Act 2004 was introduced in December 2005, all registrars were required to carry out civil partnership ceremonies. These were generally shared out in approximately the same proportion as marriage duties. Miss Ladale refused to carry out these new duties. Initially, she won her claim of direct and indirect discrimination as well as harassment. But an essential part of the Employment Appeal Tribunal ruling which overturned the earlier victory is interesting:

“ The Council was entitled to decide that Miss Ladale could not pick and choose which duties she would perform depending on her religious views, at least in circumstances where her personal stance involved discrimination on the grounds of sexual orientation.”

Gary McFarlane v Relate

Mr McFarlane was employed by Relate as a counsellor. He was trained by them to be a psychosexual therapist and his role in consequence was extended to giving advice on sexual problems encountered by couples. He too was a devout and practicing Christian. When he refused to give advice to same sex couples, he was initially suspended and ultimately dismissed for failing to uphold Relates equal opportunities policies. The tribunal ruled against him, with the telling comments:

“His dismissal by Relate was a proportionate means of achieving the legitimate aim of maintaining its commitment to providing a service to all sections of the community without any suggestions of discrimination. Relate would have treated any other employee in the same way, who, for reasons unrelated to religion had acted in a way so at odds with its equal opportunity policy.”

Mohammed Ahmed v TESCO

Mr Ahmed, recruited by the supermarket giant, as a forklift truck operator refused to handle alcoholic goods as part of his duties. He is a devout Muslim and as such he said could not handle alcohol. TESCO, who won the case, said that on appointment Mr Ahmed had never raised such objections and was indeed told in his job interview about the wide range of goods that were stored and subsequently sold in their supermarkets, including alcoholic drink.

John Mitchell v Strathclyde Fire Service

Mr Mitchell, a Christian fireman, was amongst a group of fire-fighters at a Glasgow fire station who refused to attend a gay pride march with some claiming that they were too embarrassed to attend in uniform and others saying that their presence would be “contrary to their moral beliefs”. They received a range of disciplinary sanctions from demotion to written warnings. The Fire Service decided to reach a settlement with Mr Mitchell in relation to his complaint, with an apology and an agreement to prevent him from discussing the case being part of the out of court settlement. This would have been an interesting case had it gone the whole way but it does point to the potential for “win-win” solutions outside the legislative framework.

“Win-Wins” have been secured in recent times in terms of:-

  • Scotland Yard creating a hybrid or composite helmet based on the traditional model combined with a turban for Sikh officers
  • British Airways allowing discreet jewellery such as the Christian fish symbol to be worn on their uniforms
  • Merseyside Housing Associations asking their builders to cover the boots (personal protective equipment) with plastic wraps before entering a Muslim home

And, of course, the recent case of the Christian bus driver agreeing to drive buses with “No God” adverts only if no other vehicles were available. Other passenger transport authorities across the country have reached a similar compromise.

Many employment cases can be resolved on a “win-win” basis. But if they cannot, the overarching principles that lie paradoxically at the heart of any attempt at consensus will generally prevail in law. Namely, what is reasonable, practical and proportionate?

These are, of course, employment issues. Laws governing the provision of goods, facilities and services now embrace the religion & belief strand as well as sexual orientation and gender identity. It will be interesting in the months ahead if the same tensions between religious beliefs and the notion that the “customer is always right” prevail in this hard headed commercial environment.