Employment Law E-Bulletin

Cases: Jan 09

Homophobic Banter

You may remember that back in March last year we commented on the case of English v Thomas Sanderson. Mr English brought a claim for sexual harassment after he was the subject of homophobic comments at work even though his colleagues knew that he was not homosexual.

The Employment Tribunal and the Employment Appeal Tribunal both decided that Mr English had not been discriminated against because no one thought that he was homosexual. They both thought that an employee must be of a particular sexual orientation and subject to discrimination on those grounds in order to benefit from the protection afforded by the Employment Equality (Sexual Orientation) Regulations 2003.

This case has now been reviewed by the Court of Appeal which, by a majority, has overturned the EAT’s decision. The Court stated that the regulations offer protection from unwanted conduct related to sexual orientation. Whether those subjecting a person to unwanted conduct believed the content of their jibes to be true was irrelevant, provided that the subject of their jibes was sexual orientation, then the person being subjected to the conduct would be protected.

The Court stated that sexual orientation was a personal issue that people may very well want to keep to themselves. If a person had to make a declaration as to whether or not those taunting them actually were correct then the protection the regulations sought to offer would be undermined.  

However, it is important to remember that this is a majority decision. The dissenting judgment was lengthy and shows that this is not a clear cut area of law. The problem area was whether the conduct really was “on the grounds of sexual orientation” or whether the use of homophobic language in circumstances such as this where there was no real debate over Mr English’s sexuality was just a vehicle to tease Mr English.

Thomas Sanderson may well appeal but for the moment whether or not the perpetrators believe the content of their comments is irrelevant provided that sexuality is the subject of the jibes.

Religious Beliefs

Another two cases which made the headlines last year have also recently been reviewed by the Employment Appeal Tribunal.

Firstly, in the case of Eweida v British Airways plc (BA), the EAT has upheld BA’s right to require an employee to remove or conceal a cross that she wore on a necklace. Although BA had changed their clothing policy before the decision, the EAT held that the requirement was not a form of indirect discrimination because wearing a cross was not actually a fundamental requirement of Mrs Eweida’s faith.

Mrs Eweida is a devote, practising Christian. BA had a policy during the time that she worked for them which allowed staff to wear any item of jewellery that they wished provided it was hidden by their clothing. However, if an item of jewellery was a mandatory religious requirement it was allowed to be visible subject to management approval.

In 2006 Mrs Eweida wore her cross on three separate occasions. Each time she was asked to conceal it but refused. When she was sent home without pay, she brought a claim against BA for discrimination. However, the EAT has now decided that the policy was not an example of indirect discrimination because Mrs Eweida was not able to show that anyone other than herself was affected. The belief that she had to wear a cross as a physical manifestation of her faith was a personal preference and not a firm belief that she had proven was held by a group that was disadvantaged by BA’s policy. 

The case of London Borough of Islington v Ladele has been equally well reported in the press and is an example of the EAT supporting the employer’s ultimate decision whilst at the same time being highly critical of its procedures.

Like Mrs Eweida, Mrs Ladele was a practising Christian whose beliefs got in the way of her job. Mrs Ladele was a Registrar of Births, Deaths and Marriages for London Borough of Islington. Her Christian faith led her to believe that same sex partnerships were “contrary to God’s law”. This belief was in direct conflict with the Borough’s decision to designate all of its Registrars as civil partnership arrangement Registrars.

When this decision was taken in 2005, Mrs Ladele explained to her employer that, because of her religious beliefs, she did not want to be involved in any civil partnership ceremonies. The Borough agreed that, as a temporary measure, they would excuse her from officiating at such ceremonies. However, they explained to her that she would be expected to perform all other duties relating to civil partnerships and that a refusal to do so could result in disciplinary proceedings.

Mrs Ladele wrote to the Borough rejecting this offer but received no response. She then spent some time avoiding civil partnership duties by swapping cover with other members of staff but this backfired when the other members of staff started to get resentful about having to take on extra work and formally complained.

The Borough eventually started disciplinary proceedings against Mrs Ladele, the conclusion of which was a finding that Mrs Ladele was guilty of gross misconduct.

Although the Tribunal decided that the Borough had discriminated against Mrs Ladele, the EAT thought that the Tribunal had confused Mrs Ladele’s reasons for that of the Borough. The Borough had dismissed her because she refused to carry out her duties. The Borough had not taken action against her because of her beliefs and she had, therefore, not been the victim of direct discrimination. 

The EAT decided that the Borough had not indirectly discriminated against Mrs Ladele either. The EAT felt that the Borough’s aim of promoting its equality and diversity policy was legitimate and that, by proposing a compromise position, the Borough’s means of doing so had been proportionate.

The cases above are both excellent examples of how people’s rights can compete and how an employer sometimes has to choose which side to support. However, the important thing to remember is that if there is a legitimate reason for choosing one right over another, and the process followed in making that decision is fair and proportionate, then the Tribunals are likely to support the decision.

For further information contact Burnetts' employment law team on 01228 552222.

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