Sexual orientation vs religious belief: competing protected characteristics - Quick reads - Gateley
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Sexual orientation vs religious belief: competing protected characteristics

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For anyone interested in sport and athlete conduct issues, it can't have gone unnoticed that the star Australian rugby player, Israel Folau, has recently issued legal proceedings against Rugby Australia alleging that he has been dismissed because of his Christian beliefs.

Mr Folau believes that he has been the victim of religious discrimination. Rugby Australia maintain that they have terminated his contract fairly as he has committed a “high level" breach the Players’ Code of Conduct when he wrote discriminatory comments towards the LBGT+ community on social media. The Code requires players to treat everyone equally, fairly and with dignity regardless sexual orientation. It’s a case which some say could set a legal precedent for religious expression in Australian workplaces. 

How would the English courts approach a case like this?

There has always been scope for conflict in the workplace between the protected characteristics of religious belief and sexual orientation, particularly as some religious groups have strong views on homosexuality. Employers often find themselves faced with the difficult task of trying to balance these competing rights. In extreme cases, employers need to consider to what extent they, and indeed their employees, must tolerate negative views of homosexuality expressed by work colleagues who might otherwise claim their right to freedom of expression is being breached. This challenge has generated a fair amount of legal scrutiny.

It could be legitimate for employers to have a policy prohibiting behaviour which could amount to discrimination or harassment, even if the behaviour in question is only an expression of a strongly held religious belief. However, employers would need to be confident that they can show that the policy is proportionate and applied equally to all religious groups. 

Examples of how the English Courts approached similar cases

In one particular case, a Christian registrar refused to carry out certain civil partnership duties on the basis that same-sex relationships were against her religious beliefs. Her employer disciplined her because her behaviour breached the employer's Dignity for All Policy and was discriminatory towards the gay community. The courts rejected her claim. It found that the employer had a legitimate aim of providing civil partnership services and was committed to promoting equal opportunities for all, including the rights of the gay community.

Another key message from recent cases is that while employers should not discriminate against employees because they hold certain religious views, it does not necessarily mean that employees are free to express their views regardless of how those beliefs might affect others. One of the key questions will be whether the employee concerned has manifested those beliefs in an inappropriate manner. 

In a recent case, an evangelical Christian successfully claimed that she had been discriminated against because of her religious beliefs having been dismissed for expressing her negative views on homosexuality to her lesbian colleague. On the particular facts, the employee had been simply expressing her beliefs. She had not manifested her beliefs in an inappropriate manner.

In contrast, a Christian was fairly dismissed and not subjected to discrimination when he printed and distributed Biblical extracts that were "totally hostile" to homosexuals. The court was satisfied that the employer would have treated a non-Christian who distributed similar literature in the same way. The employee was dismissed as a result of his conduct in distributing homophobic literature. He was not dismissed because of his religious beliefs.

Similarly, in another case it was held that a Christian removed from his position as a magistrate and as a non-executive director of an NHS Trust had not been discriminated against because of his religious views, but because he had acted contrary to judicial guidance and an instruction from the NHS not to speak to the press about his views on same-sex couple adoption.

So, what do these cases tell us?

Clearly this is an area in which emotions will run high and there will often be a delicate balance to be struck. Whilst employers should not discriminate against employees because they hold certain religious views or beliefs, employees do not have a green light to express their religious beliefs regardless of the impact on others.  

If current English case law was to be followed, Mr Folau might appear to have an uphill battle to show that his dismissal was because of his religious beliefs as opposed to his decision to post comments on social media that were deemed to be in breach of the Players’ Code of Conduct. This would of course assume that Rugby Australia could show that the Players’ Code is proportionate and has been applied equally to all religious groups.

If you have any questions or concerns relating to the issues raised in this article, please do not hesitate to contact Chris Kisby or any other member of the employment team at Gateley Legal.

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