Links to actual judgments in the matter of McFarlane and Relate Avon

[struggle4progress]

BAILII case number: UKEAT 0106_09_3011
Appeal No. UKEAT/0106/09
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 9 & 10 September 2009
Judgment delivered on 30 November 2009 ...
This is an appeal against the judgment of an Employment Tribunal sitting at Bristol, chaired by Employment Judge Toomer, dismissing the Appellant's claims of unfair dismissal and of discrimination contrary to the Employment Equality (Religion or Belief) Regulations 2003. The claim was heard over two days in December 2008 and the Judgment and Reasons were sent to the parties on 6 January 2009 ... The Claimant .. joined the Respondent in May 2003 as a volunteer counsellor, and after undergoing basic training he became a paid employee in August of that year. He was required to, and did, sign up to its equal opportunities policy. He initially worked in marital and couples counselling (sometimes referred to simply as "couples counselling" or "relationship counselling"). The main object of such counselling is to improve the relationship between the client couple; the issues covered might, but need not, cover sexual issues, but such counselling is not intended to cover cases of specific sexual dysfunction or disorder. In December 2005 the Claimant was asked to assist a lesbian couple. He was concerned about this and discussed his concerns in supervision with Ms Bloomfield, his counselling supervisor. As a result of the discussion, he accepted that counselling such a couple did not involve endorsement of any sexual relationship between them and he was prepared to proceed. He subsequently counselled parties to two other lesbian relationships without any difficulty, although it appears that in neither case did any specifically sexual issues arise. In September 2006 the Claimant said that he wanted to undertake a diploma course in psycho-sexual therapy ("PST"). Such therapy is concerned specifically with problems of sexual dysfunction and may include a directive approach designed to facilitate and encourage greater satisfaction in a couple's sexual activity. It is thus very different in character from the work which the Claimant had previously been doing in couples counselling. Such work was, inevitably, liable to give rise to a much more intractable conflict with the Claimant's religious beliefs. The issue was discussed between him and various managers within Relate. There may be some difference between the parties as to the extent to which the Claimant expressed a settled unwillingness to counsel same-sex couples, either specifically in the context of PST work or more generally in couples counselling; but it is clear that he raised the possibility of his being exempted from any obligation to work with same-sex couples where specifically sexual issues were involved ... The Claimant asked for more time to reply, and eventually did so on 2 January 2008, insisting that his only difficultly was about offering PST – as opposed to couples counselling – to same-sex couples or individuals. As to that, he said that his views were "evolving"; that no specific problem had yet arisen; and that any disciplinary action was premature. Mr Bennett regarded that reply as a refusal by the Claimant to confirm that he would undertake PST work with same-sex couples and accordingly initiated the disciplinary procedure. However, at the investigatory meeting on 7 January which was the first stage of that procedure, the Claimant said that if he were asked to do PST work with same-sex couples he would do so and that if any problems arose he would then raise them with his supervisor. Mr Bennett regarded that as satisfactory and brought the disciplinary proceedings to a halt. However, in a conversation on 18 January between the Claimant and Ms Bloomfield, Ms Bloomfield understood the Claimant, notwithstanding the assurance he had given to Mr Bennett, to be continuing to maintain the position which had led to the disciplinary investigation ...
http://www.bailii.org/uk/cases/UKEAT/2009/0106_09_3011.html

COURT 75
BAILII temporary Citation Number: <2010> EWCA Civ B1
Case No: A2/2009/2733
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
BAILII: <2009> UKEAT 0106_09_3011
Royal Courts of Justice
Strand, London, WC2A 2LL
29/04/2010
B e f o r e :
LORD JUSTICE LAWS ...
http://www.bailii.org/ew/cases/EWCA/Civ/2010/B1.html

[darkstar3]

1. I.E.

He voluntarily took a job where his religious conviction were in conflict with the duties of the job, and asked for a religious exemption.

:nopity:

[Name removed]

4. Deleted message

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[Silent3]

2. At a certain point, people who accept upon themselves religious restrictions...

...have to bear the burdens of those restrictions themselves, and shouldn't expect others to have to go out of their way to accommodate and ease the practice of those restrictions.

A little accommodation, like say special day off now and then shouldn't be a big thing. Not being able to deal with all of the work everyone else has to do, not wanting to work with customers or clients that everyone else has to work with, not being willing to sell items or perform services that others in the same job would be expected to do, expecting far more time off than anyone else gets for lots and lots of special "holy days"... there's only so much extra cost, expense, and inconvenience other people should have to take on so you can follow your self-imposed special religious rules.

Pleading that it's "God's special rules", not your own special rules, should have no legals standing.

I remember a case a few years ago where a Muslim woman wouldn't let her driver's license picture be taken without wearing a veil covering all of her face except her eyes. Tough luck, you accept that religious rule, you accept the burden of not being allowed to drive. No one else gets to circumvent the entire purpose of a photo ID, so neither do you.

[struggle4progress]

3. This shows signs of being a manufactured test-case:

Xpost:

... McFarlane had a former legal career as a solicitor, which he left after several decades, for a career in marital and relationship counseling: he was employed at Relate Avon after a brief volunteering period there. He does not object to counseling same sex couples on relationship issues and has counseled such couples at Relate Avon. For religious reasons, he does object to counseling same sex couples on sexual matters and raised this concern earlier. Relate Avon has a nondiscrimination statement which he accepted by signing. Notwithstanding the potential conflict between his conscience concerns regarding counseling same sex couples on sexual matters and the nondiscrimination statement, McFarlane then sought to move into sexual counseling at Relate Avon: he began appropriate academic training and was given different work responsibilities. He was not terminated for failure to perform specific job functions: he was terminated after a series of conversations with management about hypotheticals, in which management considered his responses too ambiguous

... McFarlane, a former lawyer, seeks employment at an organization with a nondiscrimination policy and, though not objecting to counseling same sex couples on relationship issues, he does object to counseling same sex couples on sexual issues -- whereafter he seeks to specialize in sexual counseling matters, and his new position provides an opportunity for a series of run-ins with the employer over purely hypothetical matters. McFarlane's termination then leads Lord Carey's hysterical public predictions about persecution and urban unrest ... http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=214&topic_id=246735&mesg_id=246785