Employment Law Advocates

The¬†judgment of the Employment Appeal Tribunal in¬†McFarlane v Relate Avon¬†is another in a long line of authorities in which¬†discrimination on the grounds of religion and sexual orientation have appeared to come into conflict. In such cases, there is often unhelpful talk about one set of rights ‘trumping’ another but this¬†just misses the point.¬†In McFarlane, Justice Underhill followed the¬†decision¬†of¬†his predecessor as President,¬†Justice Elias, in London Borough of¬†Islington v Ladele and was undoubtedly correct to do so.

The reason why ‘trumping’ is the wrong word is that there are¬†certainly¬†plenty of¬†situations¬†in which Christians and other religious people are subjected to criticism¬†that goes far beyond what is necessary to ensure¬†equality for gay men and lesbians. In such cases, a claim¬†for religious discrimination ought to succeed, even if the disciplinary action which provides the background is justified. There is perhaps an example here although, as noted at paragraph 12, it was not appealed. This¬†is the claim of harassment.

It does not appear to be disputed that colleagues of the claimant circulated a letter describing him as ‘homophobic’. This account is supported by at least one source unlikely to favour his case. The next question is why¬†this¬†suggestion was made and it simply does not follow that, because his dismissal was on the grounds of his actions¬†rather than his beliefs, the same can also be said of this remark. To call someone homophobic is an attack on the beliefs¬†at least as much as¬†the actions of that person, if not more so. Justice Underhill himself noted in Richmond Pharmacology v Dhaliwal that some examples of harassment do not require a comparator and I would submit that this falls squarely into that category.

A libel court would surely agree with me that the label ‘homophobic’ is more than¬†merely a criticism of behaviour but, if this seems extreme, consider a scenario in which¬†the word¬†is preceded or followed by a stream of unpleasant expletives. I do hope that this case is not regarded as excusing employers from the need to be more careful about their use of intemperate¬†language in these situations because, if so, then the¬†argument that one set of rights has ‘trumped’ another may begin to seem¬†like it is a valid one.