Friday, 30 April 2010

What is Religious Discrimination ?

I am going away for a few days and so cannot properly comment on the case of McFarlane v Relate BAILII: [2010] EWCA Civ B1 which has dealt with some quite fundamental questions relating to the nature of Religious Discrimination under the Employment Equality (Religion and Belief) Regulations 2003.

I was not surprised that the suggestion by Lord Carey that religious cases involving Christians should be dealt with by specialist Judges got nowhere but I also felt he did have a point that Courts seem to be applying double standards in how they deal with issues of alleged discrimination involving Christians and discrimination involving members of other religions. In addition they seem to be ignoring the basic principles of proportionality and balance which are (or should be )fundamental to the principles of anti-discrimination legislation.

The decision in the McFarlane case was based very largely on the earlier Court of Appeal decision in Ladelle v London Borough of Islington [2009] EWCA Civ 1357. Both the Court of Appeal and the Employment Appeal Tribunal had rejected the the decision of the original Employment Tribunal which had decided that Miss Ladelle had been discriminated against but I do feel that the original Tribunal had understood the issue better than the EAT or Court of Appeal when it said

"This is a case where there is a direct conflict between the legislative protection afforded to religion and belief and the legislative protection afforded to sexual orientation .... One set of rights cannot overrule the other set of rights"

That common sense and balanced view is clearly not the view of the Court of Appeal and Lawyers dealing with religious discrimination cases are going to have to reconsider their tactics accordingly

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