Tribunal right to dismiss
claims of direct and indirect religious discrimination

In McFarlane v Relate Avon
Ltd, the EAT ruled that the dismissal of an employee for refusing to provide counselling
to same-sex couples was neither direct religious discrimination, as the
dismissal was caused by the employee’s refusal to comply with the employer’s
equal opportunities policy, nor indirect discrimination, since the provision
was  a proportionate means of achieving a
legitimate aim.

The Relate Federation
provides relationship counselling services to same-sex couples in precisely the
same way as to heterosexual couples. The Code of Ethics requires that
therapists should not impose their beliefs on clients and must not discriminate
when providing services.

Mr McFarlane is a
Christian and believes that it follows from Biblical teaching that same-sex
sexual activity is sinful and that he should do nothing which endorses such
activity. He was dismissed when Relate took the view that he had no intention
of providing counselling to same sex couples, in breach of the Code.

The EAT held that the
express finding by the tribunal that the reason why Mr McFarlane was treated as
he was, was not because of his Christian faith, but because of his perceived
unwillingness to provide relationship counselling to same-sex couples, meant
there was no direct discrimination. He was treated in the same way as any
non-Christian who had stated such an unwillingness.

As to indirect
discrimination, the provision, criteria or practice (PCP) of providing the
service equally to all users, did give rise to indirect discrimination, in that
the PCP put persons of the same religion or belief as Mr McFarlane at a
particular disadvantage. However, the PCP was justified since Relate had a
legitimate aim of providing services equally to all users and it was a
proportionate, since there was no practical alternative.