Analysis: the Ladele employment appeal tribunal ruling in full
Copyright 2008
Appeal No. UKEAT/0453/08/RN
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 10 December 2008
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS M McARTHUR BA FCIPD
MS B SWITZER
LONDON BOROUGH OF ISLINGTON APPELLANT
MISS L LADELE RESPONDENT
LIBERTY INTERVENOR
Transcript of Proceedings
JUDGMENT
UKEAT/0453/08/RN
APPEARANCES
For the Appellant MS HELEN MOUNTFIELD
Instructed by:
London Borough of Islington
(Legal Services)
Town Hall
Upper Street
LONDON
N1 2UD
For the Respondent MR JAMES DINGEMANS
(One of Her Majesty’s Counsel)
Instructed by:
Messrs Ormerods
Solicitors
Green Dragon House
64-70 High Street
CROYDON
Surrey
CR0 9XN
For the Intervenor MS KARON MONAGHAN
(One of Her Majesty’s Counsel)
and
Professor AILEEN McCOLGAN
Instructed by:
LIBERTY
21 Tabard Street
LONDON
SE1 4LA
UKEAT/0453/08/RN
SUMMARY
The claimant was a Registrar who, amongst other things, registered marriages. When the Civil Partnerships Act came into force, she refused to participate in registering such partnerships because to do so was inconsistent with her religious beliefs. The council insisted that she should undertake at least some of these duties, and disciplined her and threatened her with dismissal when she refused.
She alleged that she had been discriminated against by reason of her religious belief in various
ways. The allegations were that there had been direct discrimination, indirect discrimination and
that they knew that she had genuine and strong religious reasons for not wanting to do it.
The EAT held that the Tribunal had erred in law and that on the evidence adduced before the
Tribunal there was no proper basis for a tribunal concluding that any of these forms of
discrimination had been established.
Accordingly, the appeal was upheld and a finding that there was no discrimination substituted.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
1. Ms Lilian Ladele is a strongly committed Christian. She was employed by the London
Borough of Islington from 1992. She became a Registrar of Births, Deaths and Marriages on 14
November 2002. Until 1 December 2007 that was a statutory office held during the pleasure of
the Registrar General under the Registration Services Act 1953.
In that period she was not an employee of Islington, although Islington paid her salary. She was also under a duty at that timeto abide by Islington’s policy. From 1 December 2007, pursuant to the provisions of the
Statistics and Registration Act 2007, she became an employee of Islington.
2. Ms Ladele believes, as do many Christians, that marriage is the union of one man and
one woman for life to the exclusion of all others. She believes that the Civil Partnership Act
2004, which allows males and females of the same sex to enter into civil partnerships
recognised by law, in substance allows marriage between couples of the same sex. She
considers such unions to be contrary to God’s laws and a sin.
3. The Civil Partnership Act came into force on 5 December 2005. The effect of the Act,
together with various other legislative amendments, is to give equivalent financial and legal
recognition to same sex couples as apply to opposite sex couples who choose to marry. The
council has emphasised in the course of this hearing that civil partnership is not, in fact, a
marriage: see Wilkinson and Kitsinger v Attorney General and Lord Chancellor [2007] 1
FLR 295 at paragraphs 11.20 and 120-121. However, nothing turns on that in our judgment
because the claimant’s objection was to the formal recognition of the status of civil partnerships
in a form which she considered to be akin to marriage. It is firmly established that it is not for
the court to question the rationality of her beliefs; the protection is triggered for any genuine
religious belief (with some very minor exceptions): see the observations of Lord Nicolls in R v
Secretary of State ex parte Williamson [2005] 2 AC 246 para 22. It is right to point out that
the claimant contended that her objection was not simply directed against homosexuality. She
also considered it to be a sin for sexual relationships to take place outside marriage, whether
homosexual or heterosexual.
4. Ms Ladele made it plain from the summer of 2004 that she would have difficulties
conducting civil partnerships because of her religious beliefs. She was then on long term sick
leave between May and November 2005, the month before the new legislation came into effect.
By then the arrangements for dealing with the new civil partnerships had been determined. The
Registrar General had left it to each local superintendent registrar to make the appropriate
arrangements.
5. The claimant’s line manager and Superintendent Registrar, Ms Mendez-Child, decided
that civil partnership duty should be shared out among existing staff in roughly the same
proportion as marriages. It is necessary specifically to designate a registrar as a civil partnership
registrar before that person can register a civil partnership. Accordingly, in order to ensure that
the load was shared Islington designated all its existing registrars, including Ms Ladele, civil
partnership registrars. That was not something the claimant wished and she was not consulted
about it.
6. There were two other registrars who at this time also objected to carrying out these
duties. One accepted an offer of different employment on the same pay, which removed the
dilemma. Another, a Muslim woman who also raised similar objections, left the Council’s
service. These were apparently deputy registrars and as such were employees of the Council
rather than independent office holders.
7. The council were in discussions with the Registrar General’s office about the matter.
Following advice from that quarter, Ms Ladele was offered the opportunity to undertake only
civil partnership ceremonies confined to the simple signing process. This involves no more than
obtaining certain information from the civil partners. There is another form which involves the
couple concerned undertaking a ceremony which she would not have been required to do. A
Muslim with religious objections of a similar nature working in another borough had found this
an acceptable compromise.
8. The letter setting out this offer was sent by Ms Mendez-Child on 1 April 2006. It was
stated to be a temporary measure which would be kept under review. The letter also threatened
the claimant with disciplinary proceedings if she refused this offer:
“…your actions if you were to refuse to undertake any work in respect of
civil partnerships, could be seen as a failure ‘to treat all members of the
community and other employees fairly and equally, regardless of their sex,
race, colour, national or ethnic origin, sexuality, religion, age, disability or
marital status’ and this could be considered gross misconduct. In this case
you might also be subject to formal disciplinary action.”
9. Ms Ladele was asked to sign and return a copy of the letter to confirm that she would
carry out these duties. She did not do so. Instead, she responded with a letter to Ms Mendez-
Child dated 18 April 2006 in which she made it plain that she rejected the compromise solution.
She set out what she said was the “formal record” of her concerns. She emphasised that she was
placed in a dilemma and had either to honour her faith or the demands of the council. She asked
for the council to consider the difficulty she faced and to try to accommodate her concerns so
that she could combine her work with her Christian commitments. She asked for sympathetic
treatment as a member of a minority. The letter was referred by Ms Mendez-Child to Mr Lynch,
who was Head of Democratic Services. He did not think it necessary to reply and so no reply
was ever sent.
10. At this stage the claimant avoided doing any work involving civil partnerships by
agreeing with colleagues to change their rosters where civil partnerships were involved.
Management had turned a blind eye to this in practice. However, there were still tensions within
the department; in particular from two gay employees whom the Tribunal simply identified as
Don and Viktoria. Ms Ladele complained to Mrs Mendez-Child on the 18 October 2006 that
she was not receiving support from the team.
11. Then on 2 November 2006 there was a team meeting, in which the Minutes report this:
“John [i.e.Mr Lynch] said that as long as we were under the control of GRO
then things would remain the way they are. Once we become part of the
local authority and we become local government employees and conform to
local government guidelines then the way things have been handled will
change. ”
At that meeting the claimant said that she was extremely upset and felt victimised because of her religious beliefs and was being picked upon on a daily basis. Dion responded by saying thathe felt like a second class citizen and that it was gay people who were being discriminatedagainst.
12. Dion and Viktoria wrote a letter on 14 November to Ms Mendez-Child, again
complaining that certain members of staff were refusing to do civil partnerships and that it was
a breach of the Dignity for All Policy. They alleged that it was an act of homophobia and that
they felt discriminated against. They specifically requested that they should be told by 30
November how the matter was going to be resolved.
13. There was a reply from Mr Lynch which was expressed to be on a confidential basis. It
was not copied to the claimant. The letter said this:
“… I trust that you will treat this in confidence as it contains personal
information concerning staff … I advise that I wish to take disciplinary
action against any staff who refuses to undertake these duties for the reasons
that you have already outlined. I was advised by GRO that I would be
unsuccessful in action taken against Lillian as she was a statutory officer and
as civil partnerships were never part of her original duties and not part of
her contract of employment that she has signed. Until she transfers to local
authority control from the Registrar General there is little I can do. …”
14. The difficult and tense atmosphere continued. On 17 January 2007 Ms Ladele went to
see Mr Lynch and she raised allegations of being unfairly treated. He told her – and apparently
this was the first time she knew about this – that members of staff had spoken to him about her
attitude. The notes of the meeting record, amongst other matters, the following:
“I also advised her about the CP issues and that when she transferred to
local authority control the Council would not accept her views that she did
not agree with CPs as this direct discrimination and against the staff code
and the Council’s Dignity for All policy. The Council would take
disciplinary action against her which could ultimately lead to her dismissal.
I advised that the gay and lesbian staff in the office had felt directly
discriminated by her actions. Again, I wanted these issues dealt with at the
away day.”
15. The reference to the away day is to the ‘Registrars Service Away Day’ on 22 February
2007. The issue of civil partnership was raised. The minutes show that Mr Lynch had made it
clear that it was Islington’s position that affording staff the opportunity not to undertake civil
partnership ceremonies was contrary to the council’s Dignity for All policy and the staff code of
conduct. The Dignity for All policy states that it is the council’s aim to promote equality for all
groups, targeting especially “discrimination based on age, gender, race, religion and sexuality.”
The policy applies both to staff and to customers in receipt of council services. The policy
expressly provides that “All employees are expected to promote these values at all times and to
work within the policy. Employees found to be in breach of this policy may face disciplinary
action.”
16. Matters further deteriorated with further complaints from Dion and Viktoria and in
May, Mr Lynch decided to instigate the disciplinary process and set up a preliminary
investigation. This was conducted by Mr Daniels, the Assistant Director of Law. He
interviewed both the claimant and Mr Lynch.
17. The investigatory note records that the Registrar General Inspector had advised that there
was no obligation to impose civil partnership duties on the claimant and indeed it was not part of
her job description. That was fully recognised by Mr Lynch. The investigatory note also
observed, however, that the claimant was carrying out certain other duties, such as citizenship
ceremonies and renewal of vows, which were not in her original job description, and she did so
without complaint.
18. Mr Daniels recommended that a formal complaint be brought against the claimant under
the council’s Discipline Procedure. The nature of the complaint was as follows:
“That on or from 16 April 2006 you have failed to comply with
paragraphs 4.6 and 4.7 of the council’s Code of Conduct for Employees and
the council’s Quality & Diversity Policy ‘Dignity for All’ by refusing to carry
out work in relation to the civil partnerships service solely on the grounds of
sexual orientation of the customers of that service”.
19. The disciplinary hearing took place on 16 August 2007. It was conducted by Louise
Round, the Director of Corporate Services. Ms Ladele accepted that she had conducted the
matter with conspicuous care and sensitivity. The decision was, however, that the council
should not accommodate Ms Ladele’s wish and that should she continue to refuse to conduct
civil partnerships then the council would have seriously to consider its position. However, the
letter did expressly state that no formal allegations of misconduct had been made at that stage
and it offered a further attempt at mediation. In addition, Ms Round reiterated the offer that the
claimant’s participation could be limited to straightforward signing of the register, and that she
need not involve herself with ceremonies as such.
20. The claimant never has done any civil partnership work; the status quo has been
maintained during the legal proceedings.
21. With effect from 1 December 2007 the claimant ceased to be a statutory office holder
and became an employee of the council. At all material times, however, she was an office
holder.
22. There was one further consequence of the claimant adopting the position she did. The
position of Assistant Superintendent Registrar became available when the incumbent was on
maternity leave. The claimant was not considered for that position because of the stance she had
adopted. She did not formally apply for the post, but it is accepted that this was because she
knew that she would inevitably fail to get it.
23. The Tribunal observed that the evidence demonstrated that in other regions
accommodation had been made to allow those with strong religious beliefs not to have to carry
out civil partnership duties. The relevant registrar would not be designated for civil partnership
services or else the work would be distributed to other registrars who had no concerns about
performing those ceremonies. That was a line that Islington Council could have taken. It is not
suggested that it would have been administratively difficult to have structured arrangements in
that way. The council felt that to make that accommodation was wrong.
The statutory framework.
24. The Employment and Equality (Religion or Belief) Regulations 2003 (the
Regulations) (A2) give effect to EU Directive 2000/78 EC (the Framework Directive). The
domestic legislation must be interpreted so as to give effect to it. In addition, by section 3 of the
Human Rights Act the legislation has to be read in conformity with Article 9 of the EHCR.
25. Regulation 2(1) of the Regulations (as amended by the Equality Act 2006) provides
that any religion or belief, as well as any philosophical belief, is protected by the regulations,
(including lack of religion or belief).
26. Regulation 3 of the Regulations provides:
“(1) For the purposes of these Regulations, a person (A) discriminates
against another person (B) if –
(a) On grounds of religion or belief, A treats B less favourably than he treats
or would treat other persons; or
(b) A applies to B a provision, criterion or practice which he applies or
would apply equally to persons not of the same religion or belief as B, but
(i) which puts or would put B at a particular disadvantage when
compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a
legitimate aim.
(2) The reference in paragraph (1)(a) to religion or belief does not include
A’s religion or belief.
(3) A comparison of B’s case with that of another person under paragraph
(1) must be such that the relevant circumstances in the one case are the
same, or not materially different, in the other”.
27. Regulation 3 thus makes the familiar distinction between direct and indirect
discrimination; regulation 3(1)(a) covers the former and 3(1)(b) the latter. The test of direct
discrimination involves a comparison with “other persons” (the statutory comparison), and
regulation 3(3) identifies how that comparison should be made: the relevant circumstances must
be the same or not materially different.
28. Regulation 5 of the deals with discrimination by way of harassment and provides:
“(1) For the purposes of these Regulations, a person (A) subjects another
person (B) to harassment where, on grounds of religion or belief, A engages
in unwanted conduct which has the purpose or effect of –
(a) violating B’s dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive
environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph
(1)(a) or (b) only if, having regard to all the circumstances, including in
particular the perception of B, it should reasonably be considered to have
that effect”.
29. These provisions are applied to office holders by regulation 10, and to employees by
regulation 6. Regulation 10(3)(d) specifically states that it is unlawful on religious grounds to
subject an office holder to a detriment.
Direct discrimination.
30. It is to be noted that the concept of direct discrimination in regulation 3(1)(a) closely
reflects that found in Article 2(1) of the Framework Directive. This provides:
“direct discrimination shall be taken to occur where one person is treated
less favourably than another is, or has been, or would be treated in a
comparable situation, on [any of the prohibited grounds.”
31. In order to analyse the approach of this Tribunal to the question of direct discrimination,
it is necessary to make some observations about the scope and application of that concept.
32. The concept of direct discrimination is fundamentally a simple one. A claimant suffers
some form of detriment (using that term very broadly) and the reason for that detrimental
treatment is the prohibited ground. There is implicit in that analysis the fact that someone in a
similar position to whom that ground did not apply (the comparator) would not have suffered
the detriment.
By establishing that the reason for the detrimental treatment is the prohibited
reason, the claimant necessarily establishes at one and the same time that he or she is less
favourably treated than the comparator who did not share the prohibited characteristic.
Accordingly, although the Directive and the Regulations both identify the need for a tribunal to
determine how a comparator was or would have been treated, that conclusion is necessarily
encompassed in the finding that the claimant suffered the detriment on the prohibited ground.
So a finding of discrimination can be made without the tribunal needing specifically to identify
the precise characteristics of the comparator at all.
33. Sometimes a claimant wishes to support his or her case by identifying an actual
comparator who was treated differently to the claimant. In order to be the statutory comparator
(as defined, for example, in regulation 3(3) of the 2003 Regulations) the relevant circumstances
must be the same or at least not materially different (which is the same thing.) In practice there
are rarely actual comparators who fall into that category.
34. Where an actual comparator is relied upon, there is often much dispute as to what
whether the relevant circumstances are the same or not. However, even where the actual
comparator chosen by the claimant does not have all the characteristics of the statutory
comparator – because there are material differences between the claimant’s position and that of
the comparator – evidence of how the actual comparator was treated may still have some
evidential value. The treatment of the actual comparator might cast some light upon how the
statutory comparator would have been treated. Whether and to what extent it will do so is
likely to depend upon how significant the material differences are between the actual and the
statutory comparators.
35. Where no actual comparator is relied upon, the claimant frequently seeks to identify a
hypothetical comparator. This is the idealised person who has the characteristics of the statutory
comparator. As with the actual comparator, there is often much debate and dispute about who
is the appropriate statutory comparator? However, in practice a Tribunal is unlikely to be able
to identify the statutory or hypothetical comparator without first answering the question why
the claimant was treated as he or she was.
36. Take a simple example. A claimant alleges that he did not get a job because of his race.
The employer says that it is because he was not academically clever enough and there is
evidence to show that the person appointed to the job had better academic qualifications. The
claimant alleges that this was irrelevant to the appointment; it was not therefore a material
difference. The employer contends that it is a critical difference between the two situations. If
the Tribunal is satisfied that the real reason is race, then the academic qualifications are
irrelevant. The relevant circumstances are not therefore materially different. It is plain that the
statutory comparator was treated differently. If the tribunal is satisfied that the real reason is
the difference in academic qualifications, then that provides a material difference between the
position of the applicant and the comparator.
37. The determination of the comparator depends upon the reason for the difference in
treatment. This point is more elegantly made by Lord Nicholls in Shamoon v Chief Constable
of the Royal Ulster Constabulary [2003] ICR 337 paras…
38. In short, the use of comparators may be of evidential value in determining the reason
why the claimant was treated as he or she was. Frequently, however, they cast no useful light on
that question at all. This analysis of the value of comparators is drawn from the valuable
passage in the judgment of Lord Hoffmann in Watt (formerly Carter) v Ashan [2008] ICR 82
reproduced below.
39. Furthermore, there is a particular situation where a focus on how the comparator was or
would have been treated can be positively misleading. This arises because it is now well
established that there will be unlawful discrimination where the prohibited ground contributes
to an act or decision even though it is not the sole or principal reason for the act or decision. It
follows that there will inevitably be circumstances where an employee has a claim for unlawful
discrimination even though he would have been subject to precisely the same treatment even if
there had been no discrimination, because the prohibited ground merely reinforces a decision
that would have been taken for lawful reasons. In these circumstances the statutory comparator
would have been treated in the same way as the claimant was treated. Therefore if a tribunal
seeks to determine whether there is liability by asking whether the claimant was less favourably
treated than the statutory comparator would have been, that will give the wrong answer.
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