Registrar Lillian Ladele brought a claim of religious discrimination against her employer, Islington Council, in relation to disciplinary action the Council took against her as a result of her refusal to conduct civil partnership ceremonies for same sex couples because of her (Christian) religious beliefs.

The Employment Tribunal found that the Council should have accommodated her beliefs and it was guilty of direct and indirect religious discrimination. Islington Council appealed to the EAT - they won.

Direct Discrimination
The EAT said that there had not been any direct discrimination. Ms Ladele's complaint was not that she had been treated differently from other Registrars but that she had been treated the same when, in fact, she wanted to be treated differently. It cannot be direct discrimination to treat all employees in precisely the same way.

Indirect Discrimination
The EAT went on to say that neither had there been any indirect discrimination. It is worth quoting from the judgment.

“In our judgment, the Tribunal wrongly applied the proportionality test. The focus should be on whether the means adopted are a proportionate way of achieving a legitimate aim. In our judgment, the council was entitled to adopt the position it did. Once it is accepted that the aim of providing the service on a non-discriminatory basis was legitimate - and in truth it was bound to be - then in our view it must follow that the council were entitled to require all registrars to perform the full range of services. They were entitled in these circumstances to say that the claimant could not pick and choose what duties she would perform depending upon whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on grounds of sexual orientation.

We think they were entitled not to agree to make an exception for the claimant. They were not required to connive in what they perceived to be unacceptable discriminatory behaviour by relieving the claimant of these duties. They were entitled to adopt as an objective an unambiguous commitment to the non-discriminatory provision of services by all staff who in the normal course of events, would be required to carry out those services. It would necessarily undermine that objective to make an exception for the claimant. Accordingly, their refusal to accommodate the religious belief of the claimant did not in our judgment involve unlawful indirect discrimination.”

Muslim employees and alcohol
Mr Ahmed brought a claim of indirect religious discrimination against Tesco Stores Limited.

Mr Ahmed was a warehouseman and was required to handle alcohol.

He raised a grievance and later claimed constructive dismissal on the basis that handling alcohol offended his religious beliefs as a Muslim.

Tesco did not challenge whether Muslims in general were put at a disadvantage by the requirement to handle alcohol, they accepted that they were.

The Tribunal just looked therefore at the question of justification.

They found that supplying stores with alcohol was a legitimate aim and that it was not possible to maintain supplies without requiring employees such as Mr Ahmed to handle alcohol. Requiring Mr Ahmed to handle alcohol was, therefore, a proportionate means of achieving that legitimate aim.

Note – Although Tesco (for whatever reason) did not challenge whether Muslims in general were put at a disadvantage by a requirement to handle alcohol, it does not necessarily follow that such a requirement will be discriminatory.

Homophobic “banter”
Let’s return to a case we mentioned in an earlier Alert. This case recently went to the Court of Appeal.

In English v Thomas Sanderson Limited the Court of Appeal held that “homophobic banter” could be harassment under the Sexual Orientation Regulations even where the victim was not gay, the perpetrators did not believe him to be gay, and he knew that they did not believe him to be gay.

Not surprisingly, the Court took the view that the repeated use of the word “faggot” amounted to harassment on the grounds of sexual orientation, regardless of the victim’s true sexual orientation or the harassers’ perception of it.

Have you heard the one about the Muslim employee, the headscarf and the £75,000 compensation payment?
No? Well read on.

In truth, this is not the legal profession’s finest moment.

Saleca Parkar, a Muslim legal assistant in a law firm in Birmingham, recently settled her claims of race, sex and religious discrimination for £75,000 shortly before the Employment Tribunal hearing was due to start.

Apparently one of the partners in the firm referred to her in an e-mail as “tent ‘ead” and “Mother Teresa” – presumably, a witty reference to her head scarf. Who said lawyers don’t have a sense of humour?

The same partner also referred to her as “lazy” because she refused to stand on a stool to do some filing - when she was pregnant. You couldn’t make it up.