Ladele v London Borough of Islington  EWCA Civ 1357 (15 December 2009) The England and Wales Court of Appeal has confirmed that a local council can compel its employee to register civil partnerships, even though this conflicts with the employee's religious beliefs.
The Civil Partnership Act 2004 (UK) came into force on 5 December 2005, introducing civil partnership between same sex partners. Lillian Ladele was employed by the London Borough of Islington ('Islington') as a registrar. She is an orthodox Christian, and objected to enabling same sex unions to be formed. Ms Ladele swapped assignments with colleagues to avoid officiating at civil partnerships. Islington considered this to be a breach of its 'Dignity for All' equality and diversity policy. It required all registrars assigned to officiate at civil partnerships, including Ms Ladele, to register same sex unions.
Ms Ladele argued that Islington discriminated against her on the ground of her religious belief by compelling her to do this, contrary to the Employment Equality (Religion or Belief) Regulations 2003 ('Regulations'). She also made a related complaint of harassment.
The Court held that Islington did not directly discriminate against Ms Ladele because she was not treated differently to any of the other Islington employees, who were also required to register civil partnerships.
The Court then considered whether Islington had indirectly discriminated against Ms Ladele by requiring all registrars to officiate at civil partnerships ('Requirement'). Under the Regulations, indirect discrimination occurs if:
- a requirement or practice disadvantages persons of a particular belief or activity when compared with other persons; and
- the requirement or practice is not a proportionate means of achieving a legitimate aim.
The Court found that the Requirement disadvantaged Ms Ladele because she believed that civil partnerships were contrary to the will of God, compared with other persons who did not share her beliefs.
The key issue then was whether Islington could demonstrate that the Requirement was a 'proportionate means of achieving a legitimate aim'. Ms Ladele argued that the Requirement was not proportionate to Islington's aim of providing the public with an effective civil partnership registration service. This is because Islington could arguably have accommodated Ms Ladele's wish not to register civil partnerships and still provide the same quality of registry services.
However, the Court found that this was an incorrect articulation of Islington's aim. Islington aimed to provide registry services that were not only practical and efficient, but which also complied with its overriding 'Dignity for All' policy, which requires 'its employees to act in a way which does not discriminate against others'. This is consistent with Islington's strong commitment to fighting discrimination.
The Court held that this aim was legitimate, and that Islington was justified in requiring all its registrars to conduct civil registrations. Otherwise Islington's commitment to non-discrimination would be undermined. The Court found that:
The aim of the Dignity for All Policy was of general, indeed overarching, policy significance to Islington, and it also had fundamental human rights, equality and diversity implications, whereas the effect on Ms Ladele of implementing the policy did not impinge on her religious beliefs: she remained free to hold those beliefs and free to worship as she wishes.
The Court held that the importance of acting consistently with the 'Dignity for All' policy of itself justified the Requirement, which was a proportionate means of achieving this aim. However, it also found that a range of other factors justified the Requirement, including the fact that Ms Ladele was employed by a public authority to do a purely secular task and that her refusal to perform this task resulted in discrimination against gay people, which undermined Islington's 'Dignity for All Policy' and caused offence to at least two of her gay colleagues. Further, the Court did not consider Ms Ladele's views of marriage to be 'a core part of her religion: and Islington's requirement in no way prevented her from worshipping as she wished'.
The Court considered the case in light of art 9 of the European Convention on Human Rights, which protects the right to freedom of thought, conscience and religion and the right to manifest that religion. However, these rights are subject to such limitations as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others. As a result, art 9 does not afford the right 'to manifest one's religion at any time and place of one's choosing': R (SB) v Governors of Denbigh High School  1 AC 100.
The Court further held that the requirement was necessary to ensure that Islington complied with laws prohibiting discrimination against persons based on their sexual orientation.
Relevance to the Victorian Charter
Indirect discrimination is unlawful in Victoria under the Equal Opportunity Act 1995 (Vic) ('EO Act'). There are a number of exceptions under the EO Act relating to religious beliefs. As a result, in many instances, it is lawful to discriminate on prohibited grounds if such discrimination is consistent with the discriminator's religious beliefs. This case suggests that such exceptions may be incompatible with the right to equality under s 8 of the Charter.
Additionally, this case suggests that it may be lawful and reasonable for a public authority employer to compel an employee to comply with its non-discriminatory practices, even if this would offend the religious beliefs of the individual employee.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html.
Melanie Schleiger is a lawyer with Lander & Rogers and a Board member of the Human Rights Law Resource Centre