Employment discrimination cases bolster gay rights

Two court rulings in December 2008 have important implications for the application of legislative provisions in the United Kingdom concerning discrimination in employment that are based on EU directives. One case concerned a claim of discrimination on grounds of religion or belief. The other involved the regulations preventing discrimination on grounds of sexual orientation. The outcomes of both cases have been seen as strengthening gay rights in the UK.

In December 2008, two court rulings were made in relation to claims of discrimination in employment. The rulings have significant implications for the application of EU-based legislative provisions in the UK and are deemed as being particularly significant for gay rights.

Ladele versus London Borough of Islington

The first case concerned Lillian Ladele, a registrar working for Islington Council in North London, who was disciplined and threatened with dismissal for her refusal, based on her Christian beliefs, to conduct homosexual civil partnerships, which are legally recognised in the UK under the Civil Partnership Act 2004. Ms Ladele took her case to an employment tribunal, claiming discrimination on grounds of religion or belief under the Employment and equality (religion or belief) regulations 2003, and won her original case in July 2008. However, Islington Council appealed this decision, and on 19 December 2008, the Employment Appeal Tribunal (EAT) announced its decision (153Kb MS Word) to uphold the appeal, ruling that the council’s treatment of Ms Ladele was caused by her refusal to conduct same sex partnerships, which involved discrimination by Ms Ladele on grounds of sexual orientation and not the religious beliefs behind her refusal. The tribunal therefore overturned the previous ruling and concluded that no discrimination had occurred against Ms Ladele on the grounds of religion or belief.

The EAT stated:

The council were not taking disciplinary action against Ms Ladele for holding her religious beliefs. They did so because she was refusing to carry out civil partnership ceremonies and this involved discrimination on grounds of sexual orientation. The council were entitled to take the view that this would be inconsistent with their strong commitment to the principles of non-discrimination and would send the wrong message to staff and service users.

The director of the Christian Institute, which financed Ms Ladele’s case, Colin Hart, expressed disappointment with the EAT ruling, declaring that:

Gay rights are not the only rights. If this decision is allowed to stand, it will help squeeze out Christians from the public sphere because of their religious beliefs on ethical issues.

However, gay rights organisations welcomed the decision. The chief executive of the gay rights campaigning organisation Stonewall, Ben Summerskill, welcomed the EAT ruling:

We are absolutely delighted … It was unthinkable that we should get into a position where people offering any kind of public service can pick and choose between service users on the basis of their own individual prejudices.

Ms Ladele has indicated that she would like to appeal this decision.

English versus Thomas Sanderson Blinds

In the second case, the Court of Appeal ruled on 19 December 2008 that an employee of Thomas Sanderson Blinds, Stephen English, had been the victim of sexual harassment at work after suffering repeated homophobic taunting, although he was not gay.

Mr English originally took a claim of discrimination against his employer, Thomas Sanderson Blinds, to an employment tribunal under the Employment equality (sexual orientation) regulations 2003, alleging that he was being subjected to repeated homophobic taunts from colleagues. The tribunal ruled that he could not have suffered sexual harassment as he was not gay, his taunters did not believe him to be gay and Mr English accepted that his taunters did not believe him to be gay. Mr English appealed to the EAT, which upheld the original employment tribunal decision.

However, the Court of Appeal ruling overturned the EAT’s decision. In allowing the appeal, Lord Justice Sedley stated:

The incessant mockery (“banter” trivialises it) created a degrading and hostile working environment, and it did so on grounds of sexual orientation … It cannot possibly have been the intention, when legislation was introduced to stop sexual harassment in the workplace, that such a claimant must declare his or her true sexual orientation in order to establish that the abuse was on grounds of sexual orientation.

Commentary

These two rulings are significant in terms of their impact on the interpretation in the UK of EU-based legislation governing discrimination at the workplace. Commentators note that the first case highlights the difficulties involved in adjudicating between competing rights and fundamental beliefs. In this case, the EAT ruled that the claimant’s insistence on upholding her religious belief must give way to the rights of same sex partners to have their partnership recognised by law.

The second case is being viewed as a landmark ruling, since it interprets the sexual orientation regulations as extending to homophobic abuse where the perpetrators are fully aware that the victim is not gay, but where their abuse is motivated by homophobia and associated stereotypes.

Andrea Broughton, Institute for Employment Studies (IES)

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