The Redefinition of

Marriage and School

Teachers: Freedom of

Religion in the

Workplace Shan Berg Liew Student ID: 110091495 Aberystwyth University

Abstract:

The Marriage (Same Sex Couples Act) 2013 has redefined the legal definition of

marriage to include same sex couples in it, thereby allowing them to partake in the

institution of marriage. Although the Government has stressed that this Act would in no

wise affect teachers teaching sex and relationship education, the current case law

dealing with anti-discrimination complaints by employees espousing religious beliefs

poses questions as to whether there are sufficient safeguards for teachers if their duties

come into conflict with their conscience or religious beliefs. In attempting to find out

whether there are sufficient safeguards in place, this paper will discuss the 2013 Act in

the context of current anti-discrimination law and education legislation. It will highlight

the problem with the current approach to applying the proportionality test to assess

justification of indirect discrimination in such cases expressing the concern of whether a

hierarchy of rights is being introduced in dealing with such conflict. It will also look into

the issue of religious freedom in a liberal society which affects the decision of the Courts

when dealing with such disputes. In light of such tension, this paper will argue for a more

rigorous application of proportionality and looking at the possibility of drawing upon

Canadian doctrines of imposing a duty of reasonable accommodation on employers

suggesting that this can be incorporated into the existing domestic framework of anti-

discrimination and equality law.

1

Introduction

The Marriage (Same Sex Couples) Act 2013 (‘the 2013 Act’), which received Royal

Assent on 17 July 2013, has redefined marriage in England and Wales to the effect

that the institution of marriage now includes same sex couples in it. Although the

Government has asserted that the Act would in no wise affect school teachers who

teach Personal, Social and Health Education (PSHE) under the National Curriculum,

the Act nevertheless potentially poses issues in relation to the employee’s freedom

of religion and belief under Article 9 of the European Convention of Human Rights

1950 (ECHR)1 in particular, the employee’s right to manifest their religious beliefs on

marriage. This is mainly due to the approach in which domestic courts deal with anti-

discrimination disputes by employees espousing a religious belief on sexual

orientation, in particular, the Courts’ approach in assessing the proportionality

justification in indirect discrimination cases.

This paper aims to find out whether there are sufficient safeguards for employees

espousing religious beliefs objecting to the idea of same sex marriage. In doing so, it

will discuss the effects of the 2013 Act on teachers as employees in the context of

current anti-discrimination law and contrast the European approach in applying the

proportionality test in cases of indirect discrimination and that of the approach taken

by domestic courts. It will also highlight the concern as to whether a hierarchy of

rights is being introduced as a method of resolving such disputes and look at the

issue of religious freedom in a liberal society which affects the Courts’ decision in

such cases. This paper will close by looking at solutions to resolving disputes

arguing for a more rigorous application of proportionality and suggesting that the

Canadian doctrine of reasonable accommodation can be incorporated into existing

EU and domestic anti-discrimination and equality framework.

The Marriage (Same Sex Couples) Act 2013: Content and Structure

The 2013 Act redefines marriage to include same sex couples within that definition

and amends existing legislation to allow same-sex couples to partake in the

institution of civil marriage. Amendments made to legislation on marriage include the

Marriage Act 1949, the Equality Act 2010 and Marriage (Registrar General’s Licence)

Act 1970. Section 1 of the Act states that marriage of same sex couples is lawful.

1 The European Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4 XI 1950

2

Section 11 goes on to state that the law on marriage in England and Wales has the

same effect in relation to same sex couples as it has in relation to opposite sex

couples. This includes any primary or secondary legislation which have already

come into force or will come into force at a later date. The Section goes on to state

that all legislation which touches on the subject of marriage will be interpreted

according to Schedule 3 of the Act which provides guidance on interpretation of

various terms especially those such as husband, wife and marriage and persons in

cohabitation with the effect that the terms would include same sex couples. The Act

implements a series of safeguards for religious bodies contained in sections 1 and 2

of the 2013 Act. The amendments made in relation to the Equality Act 2010 in

providing protection to religious bodies relate only to a prohibition for one to compel

a religious body or his employees to conduct marriage.2 It does not touch on

employees in general. The 2013 Act also confers on the Secretary of State and the

Lord Chancellor the task of reviewing and amending legislating pertaining to the

difference in survivor benefits and occupational pensions of both same sex couples

and opposite sex couples post the effect of this Act. The Secretary of State also has

a duty under this Act to review the future of civil partnership given the passing of this

Act. It would be helpful to look at the context in which this Act came about in order to

appreciate the purpose of this piece of legislation.

Background of the Marriage (Same Sex Couples) Act 2013

Prior to the 2013 Act, same sex couples within the UK could only enter into civil

partnerships provided for under the Civil Partnership Act 2004. Civil partnerships

were introduced in a context where the European Court of Human Rights has been

developing its jurisprudence in recognising relationships between same sex couples

under Article 8 of the ECHR, the right to private and family life.3 Indeed, the context

in which the 2004 Act was passed highlight similar themes as the context in which

the 2013 Act came into force.

2 See ss2(5), (6) and Sch. 7 of the Marriage (Same Sex Couples) Act 2013

3 The corpus of jurisprudence was initially brought by homosexual men claiming that a general prohibition on

their sexual behaviour manifested in criminal sanctions in national laws were contrary to Article 8. The

European Commission initially considered a series of cases under the name of X v Federal Republic of

Germany (Yearbook I (1955-1957) p.228 Appl. No. 104/55 and Yearbook XIX (1976) p.277 Appl. No.

5935/72) but found that the prohibition was justified based on the legitimate aim of protection of health

and morals. Later on, similar complaints were brought against the UK before the European Court of Human

Rights in X v UK (Appl No. 7215/75 Yearbook XXI (1978) p. 354 and Appl No. 7252/76 Yearbook XXII (1979)

p.156) and Dudgeon v UK (1982) 4 EHRR 149.

3

In the advent of the 2013 Act, there were increasing numbers of disputes within the

context of the workplace highlighting clashes between the rights of one employee to

manifest religious beliefs on same sex marriage and same sex couples and the

rights of same sex couples not to be discriminated against. Leading cases

highlighting this issue are Ladele v Islington Borough Council4, and McFarlane v

Relate Avon Ltd.5 In these cases, the claimants were dismissed because they found

it hard to perform their duties because of deeply held religious beliefs on marriage

and sexual orientation. Ms. Ladele, a civil registrar, whose case we will consider

below, was dismissed because of her unwillingness to officiate in civil partnership

ceremonies albeit being willing to carry out all forms of paperwork pertaining to civil

partnership. Similarly, Mr. McFarlane was dismissed because he found it hard

counselling same sex couples in relation to their sexual health because of his deeply

held religious beliefs on sexual morality which was in conflict with his employer’s

policies. In these cases the claimants argued that their dismissal violated their right

to freedom of conscience, religion and belief under Article 9 of the ECHR and

constituted a form of discrimination against them on the grounds of their religion or

belief. Their employers, on the other hand, argued that they were entitled to dismiss

them since their religious beliefs on marriage were discriminatory against their

colleagues and their clients who possess a same sex orientation, placing them at a

disadvantage.

The 2013 Act has also seen same sex marriage quickly being legalised in West

Europe and elsewhere in North America. In the European Union, the Netherlands

was the first country to recognise same sex marriage in 2001.6 This was followed

suit by Belgium in 2003 and Spain in 2006. Canada legalised same sex marriage in

2005 after a decision by the Ontario Court of Appeal in Halpern v. Canada7 ruling

that exclusion of same sex couples from the definition of marriage violated equality

rights under the Canadian Charter of Rights and Freedoms. More recently, 9 state

legislatures within the United States of America either struck down existing 4 Ladele v Islington Borough Council [2009] EWCA Civ 1357, CA

5 McFarlane v Relate Avon Ltd [2010] IRLR 872

6 Enacted under the Act of 21 December 2000 amending Book 1 of the Dutch Civil Code, concerning the

opening up of marriage for persons of the same sex (Act on the Opening up of Marriage)

(http://media.leidenuniv.nl/legacy/Translation%20of%20Dutch%20law%20on%20same-

sex%20marriage.pdf accessed on 30 Dec 2013) 7 Halpern v Canada, 65 OR (3d) 161, [2003] O.J. No. 2268, Ontario Court of Appeal

4

legislation or passed one in order to allow same sex couples to marry.8 This may

suggest a more popular move towards allowing same sex unions to be formed.

With the ECtHR’s jurisprudence currently recognising same sex couples and the

increasing number of States in West Europe allowing same sex marriage, increasing

pressure was applied on Parliament by LGBT organisations such as Stonewall and

liberal rights organisations such as the National Secular Society, to pass legislation

allowing same sex couples to marry.

There were several contentious matters, however, surrounding the passing of the

Act. One of them was pertaining to the absence of the Government’s express

intentions to legislate on redefining marriage since none of the political parties’

election manifestoes prior to the 2010 general elections expressed such an intention

apart from the Conservative Party’s Contract for Equalities, published alongside its

general election manifesto on 3 May 2010.9 Opponents of the 2013 Act argue that an

obscure document like the Contract for Equalities was unnoticeable by the public

and thus insufficient to clearly communicate to the public what the party’s legislative

intentions were in comparison to its manifesto.10 The conventional practice is that the

legislative intents within the political party’s manifesto would be expressed in the

Queen’s speech during the state opening of Parliament, should that party obtain

majority of the seats within Parliament. However, since there was no mention of such

intention within the Queen’s speech in the last state opening, the Government had

no electoral mandate to legislate on the matter.11 However, the Secretary of State for

8 In Dec 2013, courts in Utah and New Mexico ruled that same sex couples were allowed to be married. These

joined in with Hawaii, Illinois, Delaware, Minnesota, Rhode Island, California and New Jersey which makes

it altogether 9 states to allow same sex marriage in 2013. Currently there are 18 states within the US

allowing same sex marriage. (http://www.ncsl.org/research/human-services/same-sex-marriage-

overview.aspx accessed on 30 Dec 2013) 9 Conservative Party ‘A Contract for Equalities’ published 3 May 2010 at p.14. Critics of the 2013 legislation

have said that this document was too obscure for the public to know whether the Coalition government

would legislate on the matter. 10

See e.g.: Coalition for Marriage Briefing 2012 at p.3. The Coalition for Marriage further argued that the

Contract for Equalities stipulated an intention different from what the government was doing at the time of

enacting the 2013 Act. The Contract for Equalities stipulated at p.14 that the government would “consider

the case for changing the law to allow civil partnerships to be called and classified as marriage”. However,

it seems that the government has already made up its mind on legislating ahead of consultation. (see n.10

below) 11

Not mentioned in Queen’s Speech during the 2012 Parliamentary Session but ministers had the intention of

legislating on the subject of same sex marriage. (http://www.bbc.co.uk/news/uk-politics-17988236

accessed on 14 Nov 2013)

5

Women and Equalities, Maria Miller, argued that the Government was merely

fulfilling the Equality Contract expressed by Conservative government.

Besides the issue of legislative mandate, it was also argued that the Equal Marriage

Consultation was a sham as the Government seemed to have relied on anonymous

responses to their consultation whilst ignoring petitions within the UK supporting and

opposing the legislative activity.12

Moreover, it has been alleged that the Coalition

government were hinting that they would proceed with legislating on the matter

irrespective of public consultation. This was due to Equalities Minister Lynne

Featherstone repeatedly stating that the consultation was not about “whether” the

Government would change the definition of marriage but “how” it will be changed.

This has been implied to be an assertion that the Government had an aim to redefine

marriage regardless of whether the public approved of it or not.13Nevertheless, the

Government legitimated its actions in its Impact Assessment for the Bill stating that

the Act was a necessary measure because marriages could not be legally formed

between same sex couples and that only allowing them civil partnership was in effect

a legal impediment for such couples to gain access to marriage.14

Thus, it went on to

legislate to allow same sex marriage.

Having sketched the context in which the Marriage (Same Sex Couples) Act 2013

came into force, the question now is what are the effects of 2013 Act on school

teachers teaching PSHE? In answering this question it would be helpful to give a

construct on the legal context in which the 2013 Act came into force.

12

“Ministers accused of 'sham' consultation over gay marriage” The Telegraph 10 December 2012

(http://www.telegraph.co.uk/news/politics/9735738/Ministers-accused-of-sham-consultation-over-gay-

marriage.html accessed on 1 January 2014). 13

See “Lynne Featherstone: Church leaders are 'fanning the flames of homophobia” The Independent 15

March 2012 (http://www.independent.co.uk/news/uk/home-news/lynne-featherstone-church-leaders-

are-fanning-the-flames-of-homophobia-7570363.html accessed at 1 January2014) and Coalition for

Marriage Briefing 2012 at p.3 14

p.1 of Government Equalities Office, Department for Culture, Media & Sport’s Impact Assessment dated

30/04/2013

6

Religious Freedom of Employees prior to the 2013 Act

In the UK, human rights law derives primarily from the ECHR which is given direct

effect by the Human Rights Act 1998. Since the European Union’s accession to the

ECHR, it has been incorporated within the Charter of Fundamental Rights of the

European Union 2007 (the Charter).15 This Charter has the same legal value as the

founding treaties of the EU16 and constitutes the general principles of EU law and

affects the interpretation of the contents of the EU Treaties.17 Being a member of the

European Union, the UK has obligations under both Treaties.

Since the enactment of the 1998 Act, the UK has seen reception of a steady stream

of anti-discrimination legislation from the EU amongst which 5 directives are relevant

for our purposes.18 Within these, Council Directive 2000/78/EC of 27 November 2000

gave rise to the Employment Equality (Religion or Belief) Regulations 2003 and the

Equality Act (Sexual Orientation) Regulations 2007 which aim to establish a general

framework for equal treatment in employment and occupation as enumerated in the

2000 European Directive. Both these regulations have at present been subsumed

under the Equality Act 2010 and consequently revoked causing the large body of

equality and anti-discrimination law to be contained in the 2010 Act. However, the

principles, concepts and provisions established by the two regulations above have

remained much the same and have been frequently referred to in the Court’s

consideration of cases.19 We will first consider the law under the ECHR before

considering the regime under the Equality Act 2010.

According to Article 9 ECHR, everyone has the “right to freedom of thought,

conscience and religion.” This includes his freedom to change a religion or belief and

the right to manifest his religion or belief in worship, teaching practice and

15

Charter of the Fundamental Rights of the European Union 2010/C 83/02 O.J. C 83/389 16

Article 6 Treaty on European Union 2010 O.J. C 83/19 Vol. 53. The founding treaties of the EU are the Treaty

on the European Union and the Treaty on the Functioning of the European Union. 17

Ibid at para.3 18

viz. the Directive 2006/54/EC concerned with equality between men and women in employment; Directive

2010/41/EU on the application of the principle of equal treatment between men and women engaged in

self-employment capacity; Directive 2004/113/EC implementing the principle of equal treatment between

men and women in the access to and supply of goods and services; Directive 2000/43/EC; implementing

the principle of equal treatment between persons irrespective of racial or ethnic origin; and Directive

2000/78/EC establishing a general framework for equal treatment in employment and occupation. See

Malcolm Sargeant, Discrimination and the Law, (2013) Routledge at p.14 19

per Lady Hale LJ in Preddy v Bull [2013] UKSC 73 at para. 3

7

observance. “Religion or belief” is not strictly defined under the law of the ECHR and

can include a wide range of beliefs. It can range from well-established religions such

as Christianity, Islam, or Buddhism to beliefs on climate change,20

veganism21

or

pacifism.22

The right for one to hold a belief or a religion is unqualified and therefore inviolable.

Strasbourg jurisprudence lays down a threshold that a religion or belief is one where

it attains a certain level of cogency, seriousness, cohesion and importance.23

This

threshold was employed in R (Williamson and Ors.) v Secretary of State for

Education and Employment24

. In that case, Lord Nicholls of Birkenhead stated that

when the genuineness of a claimant's professed belief is an issue in the proceedings

the court will inquire into and decide this issue as a question of fact. However, it is

not for the court to “…embark on an inquiry into the asserted belief and judge its

'validity' by some objective standard”.25

His Lordship, when considering the

manifestation of a belief, stated that a belief must relate to something more than

merely trivial. “It must possess an adequate degree of seriousness and

importance.”26

So long as a belief meets this threshold, it will be a one protected

under Article 9.

Although the right to hold a belief or religion is absolute, the manifestation of a

religion or belief is limited under Article 9(2) only to such limitations as are prescribed

by law, necessary in a democratic society and according to one of the legitimate

aims listed therein. In Kokkinakis v Greece,27

one of the ECtHR’s fundamental cases

on religious freedom, the Court reiterated that not only is a person free to manifest

20

Nicholson v Granger plc UKEAT/0219/09 [2010] ICR 360 21

H v UK (1993) 16 EHRR CD 44 22

Arrowsmith v UK (1978) 19 D&R 5 23

Case of Campbell and Consans v UK European Court of Human Rights Judgement at para.36: “In its ordinary

meaning the word "convictions", taken on its own, is not synonymous with the words "opinions" and

"ideas", such as are utilised in Article 10 of the Convention, which guarantees freedom of expression; it is

more akin to the term "beliefs" (in the French text: "convictions") appearing in Article 9 - which guarantees

freedom of thought, conscience and religion - and denotes views that attain a certain level of cogency,

seriousness, cohesion and importance.” 24

R (Williamson and Ors.) v Secretary of State for Education and Employment [2005] 2 All ER 1 at p.11

25 ibid. at para. 22

26 ibid. at para. 23

27 Case of Kokkinakis v. Greece [1993] (Application No. 14307/88) European Court of Human Rights, Strasbourg

8

his religion corporately in public but also “alone and in private”.28

The right entails a

freedom to try and convince others to join him or even to change his own religion or

beliefs. These rights, the Court stressed are necessarily appurtenant to the right to

hold a religion or belief in Art.9(1), without which Article 9 “would be likely to remain a

dead letter.”29

Much of recent litigation, such as the ones mentioned above, concern

Art.9(2) of the Convention.

Article 14 ECHR further provides that enjoyment of Convention rights “shall be

secured without discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin, association with a national

minority, property, birth or other status.” It is not an independent Convention right

and can be invoked in conjunction with other Articles within the Convention and its

protocols when enforcing against a violation of a Convention right.

Under the regime of the 2010 Act, equality is enforced through a recognition of

protected characteristics30

which, when violated against, constitute a prohibited

conduct listed in Chapter 2 of the 2010 Act.31

For our purposes, the protected

characteristics in consideration centre mainly on the protected characteristics of

sexual orientation32

and religion or belief33

. In most cases, a violation of either

protected characteristic mainly comes in the form of direct or indirect

discrimination.34

According to section 13 of the Act, direct discrimination is committed when one (A)

treats another (B) by reason of (B)’s protected characteristic(s) less favourably than

(A) would treat others. It must be shown that (A) treats or would treat a relevant

28

Ibid at para. 31 29

Ibid. 30

The protected characteristics are listed in section 4 of the 2010 Act as age, disability, gender reassessment,

marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. 31

They consist of direct or indirect discrimination (ss13-19); failure to make adjustments for disabled persons

(ss20-22); harassment and victimisation (ss.26 and 27). 32

s12(1) Equality Act 2010 defines sexual orientation to mean a person’s sexual orientation towards persons of

the same sex; opposite sex; or persons of either sex. 33

s10 Equality Act 2010 defines religion to mean that any religion and a reference to religion includes a

reference to a lack of religion and belief to mean any religious or philosophical belief and a reference to

belief includes a reference to a lack of belief. 34

ss13-19 Equality Act 2010

9

comparator on the prohibited grounds, not merely the case that (A) only treats (B)

less favourably.35

Indirect discrimination under section 19 of the Act, on the other hand, is committed

when (A) applies to (B) a provision, criterion or practice (PCP) which is

discriminatory in relation to any of (B)’s relevant protected characteristic. The

provision, criterion or practice is discriminatory if, it applies, or would apply to

persons with whom (B) does not share the characteristic, and which application puts

both (B) and persons with whom (B) shares the protected characteristic at a

particular disadvantage when compared with persons who do not share (B)’s

protected characteristic.

When determining a violation by either direct or indirect discrimination, s23 of the Act

directs the Court to draw comparisons in a case by referring to similar situations

which are not materially different from the one in consideration. If no reasonable

comparator may be drawn from the claimant’s circumstances, the Court may then

draw a hypothetical comparator.36

In any dispute of a contravention within the

Equality Act 2010 the burden of proof is laid on person (A). Once the claimant (B)

had made a prima facie case against (A), a presumption that (A) has committed the

alleged discrimination would arise. This could be rebutted in turn if (A) could prove

that the prima facie allegation was false.37

In addition, the Court is obliged to

disregard the characteristics of the discriminator in assessing whether a

contravention has been made in this Act (s.24).

Justification of discrimination is possible: a case of direct discrimination, unless it is a

discrimination based on age, 38

cannot be justified. However, any case of indirect

discrimination can be justified based on a test of proportionality: that the measure

35

Baldwin v Brighton and Hove City Council [2007] IRLR 232

36 Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 Employment Appeal Tribunal

37 s136(1)-(3) Equality Act 2010 enumerating the burden of proof reads: (1) This section applies to any

proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide,

in the absence of any other explanation, that a person (A) contravened the provision concerned, the court

must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not

contravene the provision. 38

s13(2) Equality Act 2010

10

was a proportionate means of achieving a legitimate aim.39 We will now go on to

consider the current approach of domestic courts towards applying the

proportionality test when assessing the justification of indirect discrimination in

contrast to the standard required for justifying proportionality in European law and

issues arising from the application of that test in conjunction with the margin of

appreciation40

afforded by the ECtHR to Member States when deciding how to carry

out their obligations in implementing EU and ECHR law.

Indirect discrimination and the proportionality justification test

Litigation surrounding the protected characteristics of sexual orientation orientation

and religion or belief has proved contentious. It seems that, the courts have been

ready to defend sexual orientation holding that any violation in relation to this

protected characteristic is more likely to constitute a direct discrimination rather than

an indirectly discriminatory measure.41

However, when discrimination on the grounds

of religion or belief is argued, the courts would, in most cases, find that indirect

discrimination has occurred which in turn is justified based on a legitimate aim.42

This gives rise to a perception that persons having a protected characteristic of a

religion or belief are more likely to be side lined in such disputes. This could be seen

in the case of Ladele v Islington Borough Council.43

39

s19 (2) (d) Equality Act 2010 40

The concept of the margin of appreciation has been defined as the “latitude of deference of error… at which

international supervision should give way to a ECHR contracting states party’s discretion in enacting or

enforcing its laws”. Taken from Frances Hamilton, “Why the margin of appreciation is not the answer to the

gay marriage debate” (2013) EHRLR 47 41

See inter alia Black v Wilkinson [2013] EWCA Civ 820 and Preddy v Bull [2013] UKSC 73 both of which are

cases concerning private bed and breakfast owners who refused to let double bedroom accommodation to

unmarried couples out of a deeply held religious belief that marriage is between one man and one woman.

In both cases, the owners of the bed and breakfast refused same sex couples who requested for a double

bedroom accommodation. Both cases went to the Court of Appeal which held that their refusal to provide

the service constituted direct discrimination against the claimants contrary to the Reg. 3 of the Equality Act

(Sexual Orientation) Regulations 2007. 42

See more recently Mba v Mayor and Burgesses of the London Borough of Merton [2013] EWCA Civ 1562 and

Ladele v Islington Borough Council [2009] EWCA Civ 1357, CA. In both cases, the Court found that the

employers’ dismissal of their respective employees’ because of their religious beliefs which made it hard

for them to carry out their duties were not directly discriminatory but were instead indirectly

discriminatory. 43

Ladele v Islington Borough Council [2009] EWCA Civ 1357, appealed to ECtHR whose judgment has been

handed down on 15 Jan 2013 in Eweida & Ors. v The United Kingdom (Applications nos. 48420/10,

59842/10, 51671/10 and 36516/10)

11

When the Civil Partnership Act 2004 came into force, Ms. Ladele, the claimant,

notified her employer of her stance on civil partnership and expressed her wish not

to be designated as a civil partnership registrar as she only believed that marriage

was ordained by God only as between one man and one woman for life and that civil

partnership was in effect same sex marriage under a different label. Her employer

took Ms. Ladele’s view into account but nevertheless designated all its registrars as

civil partnership registrars in its alleged commitment to their “Dignity for All” policy

which was the council’s equality policy pertaining to daily operations.44

Thereafter,

Ms. Ladele made informal arrangements with her colleagues to swap assignments,

which allowed her to avoid officiating at civil partnerships. This fared until two of her

colleagues with a same sex orientation complained to their employer that they felt

"victimised" by Ms. Ladele for not carrying out civil partnership duties. Following this,

Ms. Ladele faced disciplinary action and was dismissed. Her claim against the

council for discrimination based on her religious beliefs on marriage and for

harassment ultimately failed when her case reached the Court of Appeal. The Court

upheld the Employment Appeal Tribunal’s decision in holding that the Employment

Tribunal erred in law. Their Lordships held that there was no direct discrimination on

Islington’s part as any adverse treatment on the claimant was not on grounds of Ms.

Ladele’s religion or belief alone but because she refused to conduct civil

partnerships, which was a manifestation of her religious beliefs.45

Thus, the claim fell

under indirect discrimination which the tribunal rightly found was justified as

proportionate since the claimant’s beliefs on marriage were not a ‘core’ part of her

religion and therefore rendered her objections a mere opinion on marriage.

Furthermore, the Court opined that she was working for a public authority which

required her to perform “a purely secular task”.46

The claimant’s argument that the

Council should have done more to accommodate her religious beliefs was held to be

unduly burdensome for them as they are not obliged to do so.

Having been refused leave to appeal to the Supreme Court, Ms. Ladele brought her

claim under both Article 9 and 14 of the ECHR arguing that she was discriminated

44

Lucy Vickers, Religious Discrimination in the Workplace: An Emerging Hierarchy, (2010) 12 EccLJ 280 at p.291 45

Ladele v Islington Borough Council [2009] EWCA Civ 1357 at para 33-34 46

Ibid.

12

because of her religious belief but her claim was rejected. 47 In upholding the Court

of Appeal’s judgement, the ECtHR held that the employer’s aim, enumerated in its

Dignity for All policy, was legitimate since any difference in treatment based on

sexual orientation would require weighty reasons to justify the act.48 It also held that

Islington’s means of achieving their aims were proportionate and did not exceed the

margin of appreciation available to them as a public authority. It, however, did not

deliberate on the proportionality test for justifying indirect discrimination.

There are several issues pertaining to the reasoning of the Court of Appeal and the

ECtHR in Ladele which affect the employee’s religious freedom. Generally, the

judgement of the ECtHR has extended the ambit of Article 9 to secure religious

liberty in the workplace. Mark Hill QC notes that the Eweida judgement would alter

the domestic courts’ focus by shifting from the gateway filters in Article 9(1) to the

complex balancing of rights and limitations found in Article 9(2) which in turn requires

a more rigorous exercise by the Courts when dealing with a justification for indirect

discrimination.49

The decision has also effectively outlawed the narrow interpretation

of religious manifestation so that a religion or belief did not require a “doctrinal

mandate” as previous cases concerning discrimination against religion or belief

required.50

What needs to be demonstrated is only a ‘sufficiently close and direct

nexus between the act and the underlying belief’.51

Furthermore, the Court in Eweida

overruled case law, which prior to this case has been gaining currency in both the

ECtHR and domestic courts, establishing that if one could take steps to circumvent a

limitation placed upon him, no infringement of a right under Art 9 ECHR would be

found. This means that some standard of reasonable accommodation of religious

47

Eweida & Ors. v The United Kingdom (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10). Ms.

Ladele brought her claim with 3 others: a British Airways ground hostess; a nurse; and a sexual health

counsellor. All four complained that they faced indirect discrimination contrary to Article 9 ECHR and that

there were insufficient safeguards in place to ensure that they are able to exercise their Convention rights

without hindrance. 48

Para.105 ibid. affirming inter alia Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX Smith and Grady v. the

United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999-VI; and Schalk and Kopf v Austria no.

30141/04, ECHR 2010 49

Mark Hill QC, “Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of

Strasbourg’s judgement in Eweida and Others v United Kingdom”, (2013) 15 Eccles. Law J. 191 at 194 50

Ibid. at 195. See inter alia R (Williamson and Ors.) v Secretary of State for Education and Employment [2005]

2 All ER 1 at 11 and Nicholson v Granger plc UKEAT/0219/09 [2010] ICR 360 which Eweida v UK now

overruled the requirement for a core belief. 51

supra. n.47 at para 82

13

beliefs in the workplace is required.52

Despite this, there remains still a lack of clarity

as to when exactly an indirectly discriminatory PCP is ‘a proportionate means of

achieving a legitimate aim’. This can be attributed to problems relating to the doctrine

of proportionality and the margin of appreciation which the ECtHR gives in

compliance with the principle of subsidiarity.53

One way to understand the doctrine of

proportionality is to understand the different ways in which it can be expressed.54

According to Baker, the doctrine of proportionality originates from German law

requiring that acts or measures by the state be: (1) suitable to achieve a legitimate

purpose; (2) necessary to achieve that purpose; and (3) proportional in the narrower

sense: they must not impose burdens or ‘ cause harms to other legitimate interests ’

that outweigh the objectives achieved. This proportionality stricto sensu has formed

the foundation for the ECtHR’s method in applying Article14 non-discrimination

proviso in the ECHR.55

It also forms the basic European principle of proportionality

which in its strict sense requires that any infringement of a right impose no greater

restrictions on the right than can be balanced out by the need of the State to limit

that right. That need refers both to the importance of the objective and to the need

for the particular means employed to achieve it.56

This facet of European

proportionality has been expressed by the European Court of Justice, in cases of

indirect discrimination based on sex and race where the PCP could only be justified

if it corresponds to a real need of the employer to achieve a particular aim and that

the means of achieving that aim are necessary.57

However, the standard required of

Council Directive 2000/78/EC in proving cases of` indirect discrimination, seems to

differ from that of the ECJ in that it only requires that a legitimate aim and the means

52

Mark Hill, supra n.49. at p.197. See also Professor Julian Rivers below at n.68. 53

The principle of subsidiarity is enumerated in Article 5 Treaty on European Union O.J. 2010/C. 83/18. In sum,

the principle is a one which Union institutions work on as a limitation on their competences. Under this

principle, the Union will act only if the objectives of the proposed action cannot be sufficiently achieved in

the central government or at regional and local level, but, because of the scale or the effects of the

proposed action, it could be better achieved at Union level. The institutions of the Union are to apply this

principle according to the Protocol to the Treaty on the application of the principles of subsidiarity and

proportionality. 54

Baker, “Proportionality and Employment Discrimination in the UK” (2008) 28 ILJ 305 at 309 55

Baker, ibid. This was first applied in the Belgian Linguistics case (1968) 1 EHRR 252, a foundational case in the

application of Article 14 non-discrimination Convention right. 56

Baker, supra n.54 57

Bilka-Kaufhaus Case C-170/84 ICR 110, 126. See Baker, Proportionality and Employment Discrimination in

the UK 2008 28 ILJ 305 at 310

14

of achieving it are ‘appropriate and necessary’, a facially less stringent test than that

of ‘real need and necessary’.58

Despite the different ways in expressing

proportionality, within the European legal framework proportionality is guaranteed by

requiring a level of scrutiny of indirect discrimination claims which goes beyond

striking an ad hoc balancing: it requires domestic courts to balance between the PCP

and its impact on the claimant’s group by giving discriminatory impact a high weight

through the justification that only measures which meet a real need of the employer

will be accepted.59

In comparison to the approach of domestic courts in the UK, a preference is shown

for employing an ad hoc balancing approach instead of the test for a real need and

necessity when justifying indirect discrimination. This can be seen in Ladele.

Although the Court accepted that Islington’s aim was to designate all its registrars as

civil partnership registrars in order to promote equality within and without the

organisation, it did not ask whether the aim reflected a real need of the organisation

nor did it question whether the action taken by Islington of dismissing Ms. Ladele

was necessary in the sense that it represents the least restrictive alternative

available.60

The case also reflects a general trend which the domestic courts’

engage with discrimination based on sexual orientation as the Court of Appeal did

not identify the grounds on which such discrimination could be justified and suggests

that it would be more difficult to justify indirect discrimination on grounds of sexual

orientation than it is to justify such discrimination on grounds of religion or belief.61

This, as Lucy Vickers suggests, shows that the Court is applying a lower standard of

scrutiny instead of the more rigorous European standard which concerns us as to

whether a hierarchy of rights is being introduced in such cases to resolve competing

rights between religion or belief and sexual orientation.62

This issue of a hierarchy

will be examined further below.

58

Baker, supra n.54 at p.310 59

Baker, supra n.59, at p.310 60

Lucy Vickers at p.294 61

Russel Sandberg, ‘The Right to Discriminate’ (2011) 13 Ecclesiastical Law Journal 157 at 172-173 62

ibid

15

In relation to how the ECtHR dealt with Ladele’s case, it disposed the proportionality

issue of Islington’s method to implement its policy by finding that it did not exceed its

margin of appreciation.63

Although the ECtHR weighed both Ms. Ladele’s religious

belief and the means by which Islington enforced its policy, it engaged in a

superficial balancing of the issues of protection on the conscience of the employee

against the promotion of equality in the provision of public service.64

Instead of

applying a rigorous test of proportionality, it relied on the margin of appreciation to

find justification for the indirect discrimination. Reliance on the margin of appreciation

would not help resolve tensions arising between the equality strands of sexual

orientation and freedom of religion since the concept itself is not yet defined clearly

and is rather ambiguous. This not only perpetuates existing discrimination but also

leaves room for the judiciary to utilise the concept in order to ignore issues posed by

diversity or to obscure the basis on which their decision is made where the courts

prefer to do so.65

Perhaps the Court should take a more proactive approach when

dealing with cases involving discrimination on grounds of sexual orientation based

on religious belief as reliance on the margin of appreciation would not help contribute

to the clarity and coherence of the Court’s jurisprudence.

In light of the legal context above, we now go on to assess what effects, if any, would

the 2013 Act coupled with existing law have on school teachers teaching sex and

relationship education.

What are the effects of the 2013 Act on school teachers?

According to s403 of the Education Act 1996, schools which offer sex and

relationship education must ensure that it is taught to the effect that the curriculum

would “encourage those pupils to have due regard to moral considerations and the

value of family life.” In doing so, they must have regard to the guidance issued by the

Secretary of State, which, according to s403(1A), must be designed to secure that

sex education is given to enable pupils to learn the nature and importance of

marriage for family life and the bringing up of children. Further, they must ensure that

63

Supra n.47 at para.106 64

See Mark Hill, supra at n.53 at p.203 65

Frances Hamilton, “Why the margin of appreciation is not the answer to the gay marriage debate”, (2013)

EHRLR 47 at 50

16

pupils are protected from teaching and materials which are inappropriate having

regard to their age, religious and cultural background. With s11 of the 2013 Act

amending the definition of marriage, the Secretary of State needs to update the

existing guidance to reflect the change made to the legal definition of marriage.

At the time of writing, no amendments have been made by the Secretary of State

and in the absence of a clear guidance to schools this potentially raises issues

mainly attributable to the employee’s freedom to manifest his religious beliefs in the

workplace. However, in considering that issue, the redefinition of marriage has

potential effects on the teachers’ freedom of expression as well since manifestation

of a belief requires some form of expression. We shall consider this latter and

peripheral issue first.

Freedom of expresssion

Freedom of expression is a fundamental right guaranteed under Article 10 ECHR.

The ECtHR has reiterated that this right applies not only to ‘information’ or ‘ideas’

which are “…favourably received or regarded as inoffensive or as a matter of

indifference, but also to those that offend, shock or disturb.’66

Any restriction of

freedom of expression must be justified according to the doctrine of proportionality

so that the restrictions placed on the freedom must be construed strictly, and the

need for any restrictions must be established convincingly.67

With the 2013 Act now

in force, a criticism of same sex marriage could be considered unlawful

discrimination as illustrated in Smith v Trafford Housing Trust.68

In that case, a

housing manager of the trust was demoted with a 40% reduction in salary for gross

misconduct. The disciplinary action which resulted in the claimant’s dismissal arose

as a result of a complaint from his colleague regarding his comments on a BBC

news article about same sex marriage which he posted on Facebook expressing his

objections to same sex marriages. Although the claimant was ultimately vindicated

by the High Court, he was awarded minimal damages, and was not reinstated to his

original job with its original rate of pay.69

In this respect, individual teachers in a

66

Vejdeland v Sweden At para 53 67

Ibid. 68

Smith v Trafford Housing Trust [2012] EWHC 3221 69

The claimant, Mr. Smith, was awarded £ 98 in damages but the proceedings cost him and the charity that

supported him £30,000. (See Hansard 29 Jan 2013 Column 799)

17

school not affiliated with any religion could face such a limitation on their freedom of

speech because of their stance against same sex marriage. Faith schools, in

particular, those which express a preference of opposite sex over same sex

marriages would face allegations of discrimination under the Equality Act 2010 since

such views may be regarded as detrimental to pupils who are of a same sex

orientation or are raised by same sex couples. Were such speech be held to be

directly discriminatory, no justification could be afforded to absolve liability arising

therefrom.

To the contrary, perhaps such expression would not warrant direct discrimination

and disciplinary actions since teachers could freely express their religious beliefs so

long as it is done ion a professional way having regard to the age, religious and

cultural upbringing of the pupils. Furthermore, during the scrutiny of the Marriage

(Same Sex Couples) Bill at Committee stage, the Secretary of State for Education

further explained that “…any teacher, if asked direct or invited to share his view by a

parent or a student, is perfectly at liberty to say, with equal marriage—as with

adultery, divorce or abortion— what their own moral view might be.” 70

Freedom to manifest one’s religious belief

Coming to the issue of freedom to manifest one’s belief, it has been argued that the

assurances by the Secretary of State for Education and the Government ignores

several issues which the 2013 Act poses in relation to the protections afforded to

school teachers who disagree with the concept of same sex marriage. According to

this view, the Government’s assurance misapprehends the nature of the obligation

laid down within s403 of the Education Act 1996 as s403 requires all schools not

only to teach about the factual legal position of marriage in society but also ensure

that pupils are taught about the importance or value or benefit of the institution of

marriage for family life and the upbringing of children.71 In other words, schools are

obliged to promote or endorse the institution of marriage, not just tell pupils that

marriage exists as a legal institution. With s11 of the 2013 Act amending definition of

marriage, s403 as amended, therefore, provides that the Guidance issued by the

Secretary of State for Education should not only ensure that schools teach the

70

Public Bill Committee Debate 12 Feb 2013 (see House of Commons Public Bill Committee, Hansard, 12 Feb

2013, col. 9) 71

Human Rights Implications of the Marriage (Same Sex Couples) Bill: Advice to the Catholic Bishops

Conference of England and Wales, Christopher McCrudden, at para. 105

18

nature of marriage, but also the importance of marriage in its new definition, for

family life and upbringing of children, which could imply endorsement, or even

promotion of the new meaning of marriage.72 This, in turn, leaves teachers who

object to the concept of same sex marriage no or little options but to go against their

consciences to fulfil their duties.

That said, perhaps s403 of the 1996 Act does not impose a positive obligation on

teachers to promote marriage and so violate their conscience. According to

Professor Julian Rivers, the statutory obligation laid on governing bodies and head

teachers in s403 is rather to ‘have regard’ to the Secretary of State’s guidance rather

than to follow it in all respects. Moreover, they are to ensure that pupils are not only

taught the importance of the institution of marriage but also to be protected from

teaching and materials which are inappropriate having regard to their age, cultural

and religious background.73

It would be rather wrong of a school to embark on a

promotion of a certain view of marriage as this would be ignoring the age, religious

and cultural background of pupils. Thus, it could be said that teachers would have a

broad discretion in carrying out their duties to provide pupils with a balanced view of

the institution of marriage so that they would not have to betray their consciences in

order to fulfil their duties. Furthermore, s59 of the School Standards and Framework

Act 1998 provides an express conscientious objection clause: that no person shall by

reason of his religious opinions be: disqualified from being a teacher at the school;

from being employed or engaged for the purposes of the school otherwise than as a

teacher; or receive any less remuneration; be deprived, or disqualified for any

promotion or other advantage.74

This clause is able to cover most areas of indirect

discrimination which Ms. Ladele faced as an employee. However, what remains

unclear at this juncture is the method in which the domestic courts deal with indirect

discrimination based on grounds of religion and belief when coming into conflict with

sexual orientation in particular, the balancing act of proportionality which domestic

courts would apply.

72

ibid. at para. 110 73

Marriage (Same Sex Couples ) Bill: Submissions to the Joint Committee on Human Rights by Professor Julian

Rivers, University of Bristol School of Law 2013 a para. 57 74

s59(2) and (4) School Standards and Framework Act 1998

19

With the ECtHR overruling the requirement that the claimant must establish that he

or she acted to fulfil a mandate required by his or her religion (i.e.: that the

manifestation of the belief was derived from a core part of his belief), it could be said

that teacher’s religious beliefs on marriage are directly and intimately related to their

belief and thus warrant protection under Article 9 ECHR subject to the test of

proportionality. But the Court in Eweida weighed the impact of the Islington’s policies

on Ms. Ladele against the legal principle that discrimination against persons based

on sexual orientation requires “very weighty reasons” since sexual orientation is a

core aspect of one’s identity.75

In doing so, Court seems to have rejected Ms.

Ladele’s contention that one’s religious beliefs are a core aspect of her identity as

with sexual orientation, viewing religious belief as a matter of choice making it less

weighty than sexual orientation which is seen not to be a choice. Moreover, as

discussed above, the balance afforded by domestic courts in assessing

proportionality do not question the necessity of the employer’s PCP and gives more

weight to the employer’s policy. Taken together, we arrive at the issue of whether a

hierarchy of rights is being introduced in an attempt to resolve such conflict.

A hierarchy of rights?

It is true that each Convention right is different and that one may be more superior to

the other in the sense that an infringement in either case would warrant a different

degree of response. For example, the right to life under Article 2 is unqualified

whereas a right to private and family life under Article 8 is qualified. Thus, a violation

of Article 2 is absolutely prohibited whereas a violation of Article 8 is permitted where

justification of the interference would be allowed if it is necessary in a democratic

society, according to law, based on one of the legitimate aims listed therein and that

the means achieving the aims were proportionate: i.e.: necessary as to satisfy a real

need. However, at this stage, it is unclear as to where Article 8 or Article 9 (freedom

of conscience, religion and belief) would be in the hierarchy in as in the cases

illustrated above.

Whether a hierarchy of rights is necessarily helpful in solving the present conflict is

uncertain. Some have argued that an establishment of such a hierarchy should be

75

Eweida at para.71 and 105

20

avoided as it goes against the very notion of equality that all rights should be treated

even-handedly without favouring the rights of one community over another.76

Others,

like Lucy Vickers, have suggested that such a hierarchy is inevitable. She suggests

that if a hierarchy emerges, it is important for the reasons for the different levels of

protection are clearly articulated.77

However, the absence of a detailed explanation

of such a hierarchy leaves one in doubt as to where an exercise of his right would be

in the hierarchy.

Daniel Boucher has presented a different position in relation to weight which could

be accorded to sexual orientation and religion and belief under the ECHR. He argues

that a proper reading of Article 9 would show that this right is not as circumscribed in

comparison to Article 8 since a manifestation of one’s religion or beliefs shall be

subject only to such limitations as are prescribed by law, necessary in a democratic

society and according to one of the legitimate aims stipulated therein.78

Although

some would argue the irrelevance of stressing on the word ‘only’, he states that there

is an important point of perspective being offered in Article 9: Article 9(1) defines

belief and the manifestation of belief as the basic right and that Article 9(2) makes it

plain that the basis for restricting the right to manifest is limited. In light of this, there

is more room for the exercise of a right under Article 9 than Article 8 which might

place Article 9 above Article 8. Furthermore, Article 8 prima facie contains more

grounds of limitation when compared to Article 9 in assessing justification for the

limitation.

76

E.g. Daniel Boucher at p.13 and pp.26-27 77

See Lucy Vickers, supra n. at pp.301-303 and Professor C. McCrudden “Thinking about the discrimination

directives” in EU Anti-Discrimination Review 2005 (Issue 1, April 2005), The European Network of Legal

Experts in the Non-Discrimination Field 78

Daniel Boucher at pp.31-32 compares both Article 9 and 8 arguing that although Article 9(2) does not

stipulate what to do when it comes in conflict with another fundamental right, it does not mean that one

can say that restriction of the right to manifest a belief is possible whenever one can appeal to the

restrictions stipulated therein. Article 9(2) says that one can only restrict this right when he can appeal to

the restrictions therein. Contrasted with the limitation in Article 8, paragraph 2 states that: “There shall be

no interference by a public authority with the exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of national security, public safety or the

economic well-being of the country, for the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others.”

21

Liberal society and religious freedom

The conflict between sexual orientation and freedom of religion highlights broader

issues concerning religious freedom in a liberal society, namely, whether the latter

should accommodate the former. Central to this debate is the definition of what is

secular since secularists contend that a liberal society is necessarily found on

secular and liberal principles. Indeed, consideration of this issue has affected the

manner in which domestic courts currently carry out the balancing act of

proportionality in justifying indirect discrimination. One of the factors affecting The

Court of Appeal’s decision in Ladele was that Ms. Ladele was working for a public

authority requiring her to perform a purely secular task thus implying that even if her

beliefs on marriage derived from a core part of her religion they should not exist in

the public sphere.79

This has been amplified in McFarlane v Relate Avon Ltd80

by

Laws’ LJ remarks on the relationship between religion and the law. His Lordship

opined that it is deeply unprincipled for the law to offer protection for a particular

substantive moral position on the ground only that it is espoused by the adherent of

a particular faith because it would be imposing a subjective opinion on others. He

states that religion is necessarily subjective because it is incommunicable by any

kind of evidence. Furthermore, in his Lordship’s opinion:

“The precepts of any one religion - any belief system - cannot, by force of their

religious origins, sound any louder in the general law than the precepts of any

other. If they did, those out in the cold would be less than citizens; and our

constitution would be on the way to a theocracy, which is of necessity

autocratic.”81

These responses to religion, especially a manifestation of religion in the workplace

raise questions of whether a liberal society is could be neutral towards religious

views. In order to answer this question, we have to understand the meaning of the

term ‘secular’. Daniel Boucher explains that there are two possible usages of the

79

Supra n.4 at para.52 80

McFarlane v Relate Avon Ltd [2010] IRLR 872 81

See Roger Trigg, “Equality, Freedom and Religion”, OUP 2012 at pp.144-145 wherein the author critiques the

Laws’ LJ statement as being inconsistent jumping from the position that insists on impartiality towards

individuals to insisting on the idea that religious principles are irrelevant even to the underpinning of the

law.

22

word which could be confused with. In the first place, secular could be seen as a

creed meaning a belief. However, ‘secular’ could also mean the simple absence of

religion or for that matter any belief, including a secular belief. The latter definition is

simply one of neutrality 82 meaning the impartiality of the state towards conceptions

of the ‘good life’ or what is ‘worthwhile’.83

Thus, a claim to neutrality within the

society rests on a vision of liberalism as a procedural theory, a mechanism or

process.84

As David Pollock argues, while secularization is about the subordination

or rejection of religious values and beliefs,

“Secularism is not about a secular society but about a secular state. It is a

political philosophy of separation of religion and politics ... Secularism is not

hostile to religion. It is respectful of all religions and beliefs. It is a formula for

living together harmoniously with people with whom you have profound

disagreements in matters of so-called 'ultimate beliefs'.”85

Indeed, proponents of secularism contend that in a liberal society the only way for

the state to be neutral is to require the public space to be secular, void of any religion,

since religion is inherently divisive and is itself the cause of strife both within the

country and between countries.86

Accordingly, privatisation and exclusion of religion

from the public sphere is necessary because a secular, liberal state could not be

seen to be promoting any religious views portraying it favouring another group or

equality strand over the other. Furthermore, secularists argue that since the liberal

society is born out of the Enlightenment period where rationality triumphs over

irrationality, religion itself, being riddled with subjectivism, emotion and superstition,

is an antithesis to rationality and, therefore, cannot exist within a secular society.87

As such, a secular society could only accommodate religious beliefs through the

82

Daniel Boucher, “A little bit against discrimination? Reflection on the opportunities and challenges

presented by the Equality Act Bill 2009-2010”, (2010) CARE Equality Series: Paper 2 at p.69 83

Rex Adhar & Ian Leigh, Religious Freedom in the State 2nd

Ed. 2013 OUP at p.56 84

ibid. 85

David Pollock, 'A Human Rights Approach to Secularism' (Paper for Law and Religion Scholars Network

Annual Conference, Cardiff University, 17 May 2011) 1. Taken from Alice Donald supra. (emphasis in

original) 86

Roger Trigg, Equality, Freedom and Religion, OUP 2012 at p.30 87

supra n.86 Adhar and Leigh at p.55

23

closeting of discriminatory views towards the private sphere, particularly when they

are held by servants of the state.88

However, in speaking of a liberal society, we speak also of a liberal democratic

society. A society which espouses democratic values accommodates all views

regardless of whether they concur or object with that of the majority. To require a

privatisation of religious beliefs from the public sphere does not reflect democracy

since privatisation does not act as a method of inclusion of diverse opinions. It is the

diversity of opinions within a given society that enriches its democracy. Moreover,

there is a false dichotomy in much of the literature concerning equality in using the

phraseology “religion and the state”. To discuss religion in relation to the state or

within society is very different from the phrase “religion and the state.”89

This is due

to the fact that the term ‘state’ is often used to mean the order of government and

law, and ‘society’ to mean citizens at large. In using both terms, we include both

religious and non-religious persons. It should be remembered that religion is in some

sense within both groups since it is the both that make up the society as we know it

today.90

To say that religion is irrelevant and should therefore not exist in our modern

democracies would be to dismember certain persons within society just because of

their religion or belief.

In light of the above, it is submitted, that a more religiously inclusive view of the state

would help resolve the current clash between freedom of religion and sexual

orientation. What needs to be undertaken, is a more nuanced and rigorous

application of the principle of proportionality including a duty on the employer to

provide reasonable accommodation for the employee’s manifestation of his religious

beliefs. In this view, we will now consider the use of Canadian doctrines of

reasonable accommodation and their application in cases involving clash between

sexual orientation and religion or belief, highlighting the possibility that it can be

assimilated into the existing doctrines of indirect discrimination and proportionality.

88

Stychin, Faith in the Future, at p16 89

Iain T. Benson, The Freedom of Conscience and Religion in Canada: Challenges and Opportunity 21 Emory

International Review 111 at 155 90

Ibid.

24

Proportionality and Reasonable Accommodation

Facially neutral PCPs, or even laws, impose different burdens on different individuals

or minority groups in society and most certainly contradicts the Equality Act’s aim in

implementing substantive equality. Thus, different treatment would help resolve

existing inequality. It is true that indirect discrimination already affords different

treatment. However, it does it in a more subtle way when compared to reasonable

accommodation.91

Some might claim that different treatment is discriminatory itself and mocks the

principle that everyone is equally subject to the rule of law. However, any study of

history of how minorities were treated demonstrates that exceptions protect

minorities rather than grant them special favours.92 In our case, the Marriage (Same

Sex Couples) Act 2013 allows same sex couples to partake in the institution of

marriage just like all heterosexual couples and is thus a form of different treatment in

order to achieve substantive equality between persons of different sexual orientation.

However, in doing so, care must be taken that the rights of other minorities within

society are not side lined. Imposing a duty of reasonable accommodation in law does

not require that a regulation/statute be abrogated but only that its discriminatory

effects be mitigated through different treatment.93

The concept of reasonable accommodation is neither novel nor unprecedented

within the UK. This is exemplified in Section 4 of the Abortion Act 1967 which allows

medical practitioners with conscientious objections towards abortion to be exempt

from participating in an abortion. Later, in 1995, legislation dealing with disability

discrimination contained a duty to provide “reasonable adjustments”.94

This duty was

reiterated in Article 5 of the 2000 EC Directive and has now been included into the

Equality Act 2010 requiring employers to take appropriate measures to allow

disabled persons to access employment as persons without disabilities.95

Although

this duty to provide reasonable adjustment is fairly similar to that of reasonable

91

Matthew Gibson, The God “Dilution” Religion, Discrimination and the Case for Reasonable Acoommodation

(2013) 72 CLJ 578 at 592 92

Daniel Boucher supra n.85 at p.14 93

Roger Trigg supra n.89 p.124 94

Disability Discrimination Act 1995 especially Section 4A of the Act. 95

s20 Equality Act 2010 applies the duty to provide reasonable adjustments on all employers

25

accommodation, a notable character which distinguishes both duties is that the

former is applicable solely to those who have such disabilities whereas the latter can

be applied symmetrically to different groups of people since the equality strand of

religion or belief under the 2010 Act includes a lack of the same.96

These provisions

serve as useful comparisons to draw from and show that reasonable accommodation

of religious beliefs in the workplace may be afforded in the form of an exception or as

a positive duty on the employer.

Canada has proactively engaged in the application of the duty to provide reasonable

accommodation within the workplace on employers, applying a single test across

Canadian anti-discrimination law without distinguishing between direct or indirect

discrimination.97

Under Canadian law, reasonable accommodation has been

conceived to derive from equality principles and, more specifically, from the

prohibition of discrimination arising out the prejudicial impact of a facially neutral

PCP.98

In justifying discrimination, the employer must show that: (i) the PCP was

rationally connected to the performance of the job; (ii) it adopted the particular

standard in an honest and good faith belief that it was necessary to the fulfilment of

that legitimate work-related purpose ; and (iii) the standard was reasonably

necessary to the accomplishment of that legitimate work-related purpose, i.e.: that it

was impossible to accommodate individual employees sharing the characteristics of

the claimant without imposing undue hardship on the employer.99

The Canadian

Supreme Court has preferred to interpret the undue hardship test quite loosely by

listing factors which help determine whether the test has been satisfied.100

Such

factors include limited financial and material resources, impairment of third party

rights and the efficiency of the company or the institution. In justifying the indirect

96

Matthew Gibson, The God “Dilution” Religion, Discrimination and the Case for Reasonable Acoommodation

(2013) 72 CLJ 578 at 593 97

Ibid. Matthew Gibson at 594 98

E. Bribosia, J. Ringelheim and I. Rorive, “Reasonable Accommodation for Religious Minorities: a promising

concept for European antidiscrimination law?” (2010) 17 Maastricht Journal of European and Comparative

Law 137 at 148 99

British Columbia (Public Service Employee Relations Comm) v BCGEU [1999] 3 SCR 3 at 32, para.54 Taken

from Matthew Gibson supra n.99 at 594-959 100

Supra n.101 at 148. See also Central Alberta Dairy Pool (Central Alberta Dairy Pool v. Alberta (Human Rights

Commission), [1990 2 S.C.R. 489, p. 520-521)

26

discrimination the employer must provide concrete and material evidence of the

undue hardship; mere hypotheses or speculations are not sufficient.101

Admittedly, the threshold of impossibility on employers in order for them to prove

undue hardship is very high which leaves them no choice but to prove that every

effort has been made to accommodate the employee.102

Moreover, as Matthew

Gibson puts, this high threshold requires an interrogation into the employee’s

circumstances in the workplace besides that of the employer. In this respect, the

decision on what accommodation is ‘reasonable’ and what hardship is ‘undue’

requires balancing of interests and is based on a proportionality test. Gibson argues

that this balancing necessitates a detailed and forensic assessment of all the issues

in attempting to achieve maximum accommodation possible.103

Drawing back into the UK, reasonable accommodation could be applied in

proportionality tests justifying either a violation of Article 9 ECHR or indirect

discrimination contrary to the Equality Act 2010. Firstly, Article 9(2) provides that a

restriction on a manifestation of a religious belief could be justified if it was as

prescribed by law and necessary in a democratic society to achieve one of the

legitimate aims listed therein. The concept of ‘necessary in a democratic society’

implies the requirement of proportionality between the means used and the

envisaged ends. In assessing proportionality, it must be shown that the state had

used the least restrictive measure available to achieve its aims. If the state, by

providing reasonable accommodation could avoid impairing the right to the individual

affected, it could be said therefore that the measure used was the least restrictive

and thus justifies the limitation on the right.104

A duty to provide reasonable accommodation is also implicitly included when

assessing non-discrimination under Article 14. This could be seen in Thlimmmenos v

Greece105

wherein the ECtHR held that that the non-discrimination principle included

a prohibition on the State from failing to ‘treat differently persons whose situations

101

ibid 102

Matthew Gibson supra n.99 at p.596 103

ibid 104

supra n.101 at 151 105

Case of Thlimmenos v Greece (Application No. 34369/97) European Court of Human Rights Strasbourg 6

April 2000

27

are significantly different' without an objective and reasonable justification.106

In that

case, the Court found that the State violated the applicant’s right to Article 9 and 14

ECHR when Greek authorities had refused to appoint him to a chartered

accountant's post on the ground that he had been convicted of a serious crime prior

to his appointment for having refused to do military service due to religious reasons.

Deliberating on the violation, the Court found that the State violated the applicant’s

rights despite the general applicability of legislation to persons obliged to engage in

military service, penalising those who refused to engage in military service due to the

State failing “to introduce appropriate exceptions to the rule barring persons

convicted of a serious crime from the profession of chartered accountants.”107 In this

respect, the decision lays down an implicit principle that the way to avoid

discrimination contrary to Article 14 is that the State modifies a general rule if

necessary by establishing appropriate exceptions. This principle can be likened to

the duty to provide reasonable accommodation.108

Coming now to indirect discrimination, we recall that indirect discrimination is

unlawful unless it can be justified that the measure used was proportionate in that it

was “appropriate and necessary” or “proportionate so as to achieve legitimate aims”.

It is possible to include a duty to provide reasonable accommodation when asking

whether the measure used was a necessary to achieve a real need of the employer

and that in assessing necessity, the measure used was the placed the least

restriction on the right. Take for example a school policy requiring teachers teaching

sex and relationship education to use the materials listed therein when teaching

pupils on the subject of marriage. Now that marriage has been redefined, this would

place teachers who object to the concept of same sex marriage based on their

religious beliefs at a disadvantage because they would need to use such materials in

the performance of their duties. While the policy is pursuing an undoubtedly

legitimate aim to teach pupils the institution of marriage as a whole, is the use of

such materials appropriate and necessary for the school to achieve a real need to

educate pupils attending it? Would allowing teachers who have strong traditional

beliefs on marriage to request a substitute teacher to teach in their place for those

106

Ibid. at para 44 107

Ibid. 108

supra n.101 at 154

28

lessons suffice to avoid any disputes arising? Indeed, the issue of balancing the

rights between persons of religious beliefs and persons with a certain sexual

orientation requires much sensitivity. It is in this connexion, it is suggested, that the

Canadian model of reasonable accommodation should be applied.

Having said about the application of reasonable accommodation, it is not the case

that the Canadian model of reasonable accommodation is fool proof. The Canadian

model of reasonable accommodation is admittedly still in the course of development.

It is at odds with indirect discrimination since reasonable accommodation is focused

more on individual discrimination rather than group discrimination. Furthermore, the

requirements necessary to demand an accommodation for religious reasons requires

the claimant to show the conflict between the PCP and his religious beliefs. What

should the judge then decide when the claimed religious obligation is controversial

within the faith community itself?109

Moreover, as in this case, a conflict between two

fundamental rights might lead to a limitation of one right in relation to the other, thus

establishing a hierarchy of rights which is undesirable. Despite these difficulties in

application, the Canadian model still serves as a useful guide to instruct current

application of anti-discrimination law within the framework of the Equality Act 2010.

Conclusion

The Marriage (Same Sex Couples) Act 2013 poses several issues which potentially

affects school teachers teaching sex and relationship education. These issues

mainly affect their freedom to manifest their religious beliefs in the workplace when

such views seem to discriminate against persons of a certain sexual orientation. In

light of the cases discussed above, employees could face disciplinary actions by

their employers when such views are expressed which might lead to their dismissal.

Although there are several safeguards in place to allow school teachers to express

their religious beliefs in the workplace, there is still uncertainty as to how domestic

courts would treat such cases when determining whether the employer’s aims were

proportionate as to achieve legitimate aims. This highlights problems relating to

domestic courts’ application of the proportionality test in that they do not apply a

rigorous test as required under European law. In this respect, it is submitted that a

109

Supra n.101 at 149

29

more rigorous test of assessing proportionality should be applied by domestic courts

in such cases i.e.: an assessment of whether the measure used to achieve a

legitimate aim was necessary to achieve a real need of the employer and, in

assessing necessity, whether the measure adopted was the least restrictive

alternative available. Furthermore, a more proactive approach should be taken by

the ECtHR in clarifying the law in relation to the proportionality assessment rather

than relegating such matters to the margin of appreciation accorded to Member

States since a more proactive approach might aid in the clarification of the law in this

area.

This paper has also attempted to highlight the possibility of incorporating a duty on

employers to provide reasonable accommodation to employees drawing upon

Canadian doctrines of reasonable accommodation. It is suggested here, that, in

employment disputes concerning discrimination on grounds of sexual orientation

based on one’s religious belief, recourse to arbitration, discussion and forum should

be had in the first place and that every effort should be made to understand both

parties’ views so as to reach a compromise or settlement. Recourse to swift initiation

of disciplinary proceedings resulting in litigation would increase tension and

potentially give the public a wrong perception of how religious persons conduct

themselves in the workplace or present a view that sexual orientation is more

important than religious beliefs. A more inclusive view of the state and society should

also be taken by the courts instead of the current view that these should be secular

requiring a privatisation of religious views since society and the state are made up of

both religious and non-religious persons and that to privatise either persons presents

a loss to the civil society as a whole.

30

BIBLIOGRAPHY

Statutes and Treaties

1. Marriage (Same Sex Couples) Act 2013

2. Equality Act 2010

3. Education Act 1996

4. European Convention for the Protection of Human Rights and Fundamental Freedoms

1950

5. School Standards and Framework Act 1998

6. Charter of the Fundamental Rights of the European Union 2010/C 83/02 O.J. C 83/389

Cases

1. Ladele v London Borough of Islington [2009] EWCA Civ 1357

2. Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)

3. Eweida & Ors. v The United Kingdom (Applications nos. 48420/10, 59842/10, 51671/10

and 36516/10), 15 Jan 2013 (Final Version 27 May 2013) European Court of Human

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4. McFarlane v Relate Avon Ltd [2010] IRLR 872

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31

3. Alice Donald, “Advancing Debate about Religion or Belief, Equality and Human Rights:

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Other Materials

1. Department for Education’s Sex and Relationship Education Guidance July 2000 (Ref:

DfEE0116/2000)

2. Gay Marriage in Primary Schools: The Impact of Redefining Marriage on Education,

Coalition for Marriage 2012

3. Dr. Daniel Boucher, “A Little Bit Against Discrimination? Reflection on the opportunities

and challenges presented by the Equality Bill 2009-2010” Christian Action Research

Education (CARE) Research Paper 2010

4. Baroness Hale of Richmond, The Conflict of Equalities, Alison Weatherfield Memorial

Lecture at the Employment Lawyers Association 10 July 2013

5. Respecting Beliefs about Marriage: A guide for schools and teachers in England and

Wales Coalition for Marriage 2013

6. Equal Marriage: The Government’s Response, December 2012 Crown Copyright 2013

7. Equal Marriage – A Response to Aidan O’Niell QC’s Legal Opinion, Department for

Culture, Media and Sport, February 2013

8. The Real Mythbusters – Setting out the Truth, Christian Action Research Education

2013

9. Webpages

32

o "Ministers accused of 'sham' consultation over gay marriage” The Telegraph 10

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news/lynne-featherstone-church-leaders-are-fanning-the-flames-of-homophobia-

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National Conference Of State Legislatures http://www.ncsl.org/research/human-

services/same-sex-marriage-overview.aspx accessed on 30 Dec 2013

o Kees Waaldijk, “Text of Dutch law on the opening up of marriage for same-sex

partners (plus explanatory memorandum)”, obtained from Universiteit Leiden,

Netherlands via

http://media.leidenuniv.nl/legacy/Translation%20of%20Dutch%20law%20on%20sa

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