The judgment of the European Court of Human Rights in the case of McFarlane v the United Kingdom will be of comfort to charities seeking to balance the rights of different groups under the Equality Act.
Relate Avon is a charity that provides counselling and sex therapy services. Equal opportunities policies include ensuring equality for clients and staff, and they emphasise avoiding discrimination.
Relate employed Gary McFarlane, a practicing Christian, as a counsellor. Concerns emerged regarding his willingness to work with gay couples.
McFarlane acknowledged a conflict between his work and his beliefs, but told his supervisors he would do it. They, however, had concerns about his understanding of the issues and the honesty of his statement.
Disciplinary proceedings followed. Relate found that McFarlane did not have any intention of providing counselling to gay couples and did not trust him to comply with its policies. He was dismissed for gross misconduct and his appeal was unsuccessful.
The legal decisions
McFarlane unsuccessfully brought claims of direct and indirect religious discrimination, as well as unfair and wrongful dismissal, to the Employment Tribunal. He appealed, but was again unsuccessful. Permission to appeal to the Court of Appeal was refused.
One aspect of the proceedings related to McFarlane's claim of indirect discrimination. It is unlawful when a provision (Relate's requirement that counsellors comply with its equal opportunities policy) that applies equally (to its counsellors) puts or would put people who share a protected characteristic (McFarlane's religious beliefs) at a disadvantage, unless the employer can show it is a proportionate means of achieving a legitimate aim. It was accepted that Relate's requirement put people sharing McFarlane's beliefs at a disadvantage. However, its aim of providing services in a non-discriminatory way was legitimate and its refusal to accommodate views that contradicted its principles was a proportionate means of achieving that.
McFarlane applied to the ECHR, arguing that UK law did not protect his right to manifest his religion. The UK government disagreed that there had been any infringement. The ECHR concluded that the UK courts did not violate his rights: McFarlane's choice to undertake employment he knew would have an impact on his religious freedoms was relevant - but the key factor was that Relate acted to ensure the implementation of its anti-discrimination policy.
Lessons for charities
This case highlights the importance of having robust policies, communicated to staff. However, another case should serve as a caution: the ECHR recently upheld a complaint against British Airways from a Christian member of staff who was denied permission to wear a visible cross at work. Here, the ECHR found too much weight had been accorded to the company's wish to project a corporate image. In McFarlane's case, the charity's aim involved another protected characteristic: sexual orientation.
Victoria Willson is a partner at Levenes Employment, third sector specialists