Employment Law Advocates

There has been an interesting decision from the Charity Tribunal, which again deals with the tricky interaction between gay rights and religious rights. Though it is not in any way binding, there is some interesting reasoning on aspects of discrimination law which could be applicable to the sphere of employment law.

As the JFS case made clear, in most areas of life, direct discrimination cannot be justified. Furthermore, it is incorrect to argue that, because discrimination was done at the behest of a third party, it was not on a prohibited ground, if it was known that the third party was acting on that ground (see R v Commission for Racial Equality ex parte Westminster City Council). However, in charity law, justification is possible and, this case, Catholic Care, a charity which makes adoption available only to heterosexual couples, tried to argue that this should be permitted because, otherwise, its homophobic funders might stop donating.

Catholic Care lost on the facts because the tribunal was unpersuaded that the threat to contributions was as great as was being suggested. However, it also went on to consider the legal question of justification and concluded that the negative attitudes of third parties can never justify discrimination. It relied on the decision of the European Court of Human Rights in Smith and Grady v UK, which stated that a breach of the right to private life of gay soldiers could not be justified by the negative attitude which was attributed to their colleagues.

Even more strikingly, it was conceded by the legal team of Catholic Care that discrimination could not be justified by a desire to comply with the tenets of the church. This is in marked contrast to the judgment in JFS where, although the majority considered that the admissions policy was disproportionate, all of the Justices concluded that, in principle, this could be a legitimate aim. The main distinction to be drawn between the cases seems to be that a private body can exceptionally rely on religious considerations but a publicly funded one cannot.