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Ladele V London Borough Of Islington [2009] EWCA Civ 1357: The Clash Of Rights

Ladele v London Borough of Islington [2009] EWCA Civ 1357: the clash of rights

Nimrah Ashraf

Nimrah Ashraf

Nimrah read law at Cambridge University and is currently working with legal NGOs. Her interests lie in Tort Law, Employment Law and Public Law.

In Ladele v London Borough of Islington, the Court of Appeal held that a Christian registrar could be compelled to officiate civil partnership ceremonies, notwithstanding their conflicting religious beliefs. This appears at odds with the principle that all protected characteristics are afforded equal protection – religion being ‘ranked’ below sexual orientation. However, the better view is that Ladele simply follows from a proper application of general principles. It does not represent an attempt to develop a hierarchy of protected characteristics.

Employment Appeal Tribunal judgement: [2008] UKEAT/0453/08
Court of Appeal judgement: [2009] EWCA Civ 1357

Facts

Ms. Ladele worked as a registrar of births, marriages and deaths for the London Borough of Islington (‘Islington’). She explained to Islington that, due to her Christian beliefs, she would prefer not to carry out civil partnership ceremonies for same-sex couples. Islington designated all registrars as civil partnership registrars, however they made Ms. Ladele an offer of temporary accommodation. They said she would not be required to officiate at civil partnership ceremonies, although she would be required to carry out other duties related to civil partnerships. Ms. Ladele rejected this offer.

For a while, Ms. Ladele managed to avoid officiating at civil partnership ceremonies by swapping rotas with her co-workers. Two gay colleagues of hers made a written complaint to Islington about this. They argued her behaviour breached Islington’s ‘Dignity for All’ policy, which protected Islington’s staff and the public (as users of Islington’s services) from discrimination. Islington took disciplinary action against Ms. Ladele and found her guilty of gross misconduct. Islington repeated its offer of temporary accommodation. Ms. Ladele was warned that, if she again refused, her employment might be terminated. Ms. Ladele brought proceedings against Islington for direct discrimination, indirect discrimination and harassment on the grounds of religion or belief. This case note will consider the discrimination claims.

The Legal Background

Today, the Equality Act 2010 prohibits direct and indirect discrimination on the grounds of nine protected characteristics, including religion or belief. As Ms. Ladele’s case was brought before the Equality Act 2010, the relevant pieces of legislation were the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2007. These regulations prohibit discrimination in much the same way as the Equality Act 2010, therefore Ms. Ladele’s case remains relevant today.

The Employment Appeals Tribunal [2008] UKEAT/0453/08

Direct discrimination

Direct discrimination occurs where, because of a protected characteristic, A treats B less favourably than A would treat others. This is assessed by asking whether B has been treated less favourably than a hypothetical comparator, who is not materially different to B, except that they do not have the protected characteristic.

The EAT considered Ms. Ladele’s complaint to be that Islington had failed make an exception to the requirement to perform civil partnership ceremonies. Therefore, Islington was not treating Ms. Ladele less favourably than their other employees, who were also subject to this requirement. The comparator used was a registrar who refused to officiate civil partnership ceremonies due to an antipathy to same-sex relationships unconnected to a religious belief (Elias J at [64]). The EAT considered that Ms. Ladele had failed to establish that this comparator would have been treated more favourably than she had been. Thus, she was not the victim of direct discrimination.

Indirect discrimination

Indirect discrimination occurs where A applies to B a provision, criterion or practice (‘PCP’) which is discriminatory in relation to a protected characteristic of B’s. The PCP is discriminatory if it puts those with the protected characteristic at a particular disadvantage compared with those who lack this characteristic. On these facts, the requirement for all registrars to officiate civil partnership ceremonies for same-sex couples would put Christians, like Ms. Ladele, at a particular disadvantage due to a conflict between work and belief ([95]).

Unlike direct discrimination, indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim. The EAT accepted that Islington, particularly as a public authority, had legitimate aims in providing a non-discriminatory service, promoting equal opportunities, and protecting gay rights. Therefore, the question was whether the steps taken were proportionate.

Ms. Ladele argued Islington’s civil partnership requirements could have been fulfilled without requiring her personally to officiate civil partnership ceremonies. Under the Civil Partnership Act 2004 (‘CPA’), registration authorities are required to “ensure that there is a sufficient number of civil partnership registrars for its area to carry out in that area the functions of civil partnership registrars” (s. 29(2)). The CPA does not impose an obligation to designate all existing registrars. In contrast, Islington argued that its legitimate aims could only be fulfilled by preventing all registrars from refusing to carry out civil partnership duties due to discriminatory reasons.

The EAT agreed with Islington, stressing that it would “necessarily undermine [Islington’s] objective to make an exception for [Ms. Ladele].” (Elias J at [117]). Elias J also noted that disciplining Ms. Ladele was no different to disciplining “gay registrars who refused to marry…certain Christian evangelicals because the registrars objected to their hostility to civil partnerships” ([113]).

The Court of Appeal [2009] EWCA Civ 1357

Lord Neuberger MR, with whom Dyson LJ and Smith LJ agreed, dismissed Ms. Ladele’s appeal.

Direct discrimination

The Court of Appeal agreed with the EAT’s finding that there had been no direct discrimination. Lord Neuberger stressed that Islington’s treatment of Ms. Ladele was unconnected to her religious belief. Rather, the issue was that the manifestation of her belief was a refusal to conduct civil partnership ceremonies. Any refusal to do so, for whatever reason, would have resulted in identical treatment. In other words, Islington had refused to “accomodat[e] her actions rather than her beliefs” ([36]). Lord Neuberger also agreed with Elias J’s choice of comparator: a registrar who refused to officiate civil partnership ceremonies due to an antipathy to same-sex relationships unconnected to a religious belief ([39]).

Indirect discrimination

The Court of Appeal also agreed with the EAT’s findings on indirect discrimination. Lord Neuberger first held that requiring all registrars to perform civil partnerships “put a person such as Ms. Ladele, who believed that civil partnerships were contrary to the will of God, at a particular disadvantage when compared to other persons” ([43]). He also accepted that Islington had a legitimate aim in “fighting discrimination, both externally, for the benefit of residents of the borough, and internally in the sense of relations with and between their employees” ([46]). However, Ms. Ladele’s claim again failed at proportionality. Agreeing with the EAT, Lord Neuberger considered any exception to the requirement to officiate civil partnerships would compromise Islington’s legitimate aims ([52]).

Analysis

At face value, Ladele suggests the courts have constructed a hierarchy of protected characteristics, in which religion is ranked below sexual orientation. McFarlane v Relate Avon [2009] UKEAT/0106/09/DA supports this narrative. In that case, the claimant brought an indirect religious discrimination claim following being dismissed for refusing to counsel same-sex couples. Like Ms. Ladele, their claim was unsuccessful. However, the better view is that the apparent marginalisation of religion is a result of deficiencies in general principles, as applied to religion, rather than being an intentional policy choice.

Deficiencies in general principles

The first deficiency is an appearant hierarchy of discrimination types, rather than a hierarchy of protected characteristics. Religious discrimination claims typically concern indirect discrimination, where employers are reacting to the manifestation of religion rather than belief itself. In this case, Islington objected to her refusal to officiate civil partnership ceremonies rather than her objection to gay marriage. This put Ms. Ladele at a ‘particular disadvantage’ compared to non-Christians (the indirect discrimination test), but she was not being treated ‘less favourably’ because of her religious beliefs (the direct discrimination test). However, had Islington not disciplined Ms. Ladele, they may have been subject to direct discrimination claims from their gay employees. As direct discrimination cannot be objectively justified, employers are more likely to risk the indirect religious discrimination claim instead.

Secondly, indirect discrimination claims, like Ms. Ladele’s, tend to fail at the proportionality stage of the analysis, a problem by no means exclusive to the protected characteristic of religion. This is because the UK courts favour the less demanding standard of ‘reasonable necessity’ over the European standard of ‘strict necessity’ (Bilka-Kaufhaus GmBH v Weber von Hartz [1986] C-170/84). Therefore, to be proportionate, a “measure has to be an appropriate means of a legitimate aim and (reasonably) necessary in order to do so” (Homer v Chief Constable of West Yorkshire [2012] UKSC 15, per Lady Hale at [22]). It has been argued that this leads courts to place too much weight on the employer’s reasonable needs, at the expensive of a proper consideration of the discriminatory impact on claimants like Ms. Ladele.

Conclusion

It is therefore inaccurate to say that Ladele is an instance of the courts favouring sexual orientation over religious belief as a protected characteristic. Rather, Ladele lays bare the deficiencies in the principles which underpin the law on indirect discrimination. One possible avenue forward would be to reform the UK’s proportionality test to give more weight to discriminatory impact. While this may not always alter the result for claimants like Ms. Ladele, it would strike a better balance between competing interests.

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