Friday, July 11, 2008

Comment on Employment Tribunal Decision.

The decision yesterday by an English employment tribunal that a registrar, Ms. Ladelle, had been been subject to direct and indirct discrimination and harassment on grounds of religion has, predictably, lead to much commentary. Some hail the decision and others fiercely criticise it. An example of the latter can be found today on The Guardians 'Comment-Is-Free' section, where the president of the president of the National Secular Society has contributed this commentary on the case. Sanderson, as well as the tribunal, confuses, in my opinion, the competing rights in this case.

In its decision,(1) the tribunal stated, inter alia: "This is a case where there is a direct conflict between the legislative protection afforded to religion or belief and the legislative protection afforded to sexual orientation."(2) The rights in conflict were found in Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) 2003 and the European Convention on Human Rights, and the tribunal emphasized that "one set of rights cannot override the other set of rights."(3) In finding that the Islington Council had indirectly discriminated against the registrar, the tribunal held that Council "placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of Ms Ladele as one holding an orthodox Christian belief. "(4)

In applying 2003 Religion or Belief Regulations, the tribunal first considered whether there had been discrimination on grounds of religion and secondly, whether such discrimination was justified. The tribunal's finding of discrimination is not controversial, but its analyses of whether the actions of the council were justified is more problematic.

In considering whether the actions of the Council were proportional to a legitimate aim, the tribunal balanced the rights of Ms Ladele against the rights of the homosexual community. The Council's actions were held not to be justified because the council did not show that the rights of the homosexual community would be undermined if the council allowed Ms Ladele to be excused from performing civil partnership ceremonies. The ability of the Council to perform its statutory duties to register civil partnerships were found not to be diminished.(5)

However, the rights of the registrar should, in my opinion, not only have been balanced against the rights of the homosexual community, but also against the right of the Council as an employer to organise and direct the work of the registrars, and to do so efficiently. Also the rights of other registrars and employees should have been taken into consideration.

I therefore do not consider this decision to be particularly well reasoned and its importance should not be exaggerated. Decisions by employment tribunals do not create legal precedent and this decision does not, in my opinion, add clarity as to how the test of proportionality under the 2003 regulations should be applied.

(1) Ladele v. London Borough of Islington, Central London Employment Tribunal, case number 2203694/2007. The decision can be downloaded from the Christian Institute's website here.
(2) Ibid. paragraph 50.
(3) Ibid.
(4) Ibid. paragraph 87.
(5) Ibid.


At 12 July, 2008 01:35, Blogger Craig Nelson said...

I certainly agree with the last two paras of your blog article.

I quite amazed to follow the legal reasoning of the judgment. Would be interesting to see if there's an appeal.


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