The Civil Division of the Court of Appeal handed down judgment in the case of McFarlane v Relate Avon Limited [2010] IRLR 196 on 29th April 2010. This renewed application for permission to appeal against the Employment Appeal Tribunal concerned claims of unfair dismissal and religious discrimination.

The applicant had been employed in a paid role providing relationship counselling. The contract of employment included an express equal opportunities policy. The applicant, a Christian, attempted to obtain exemption from work with same-sex couples where issues of psycho-sexual therapy were involved. Following a refusal of this request, the applicant continued to work for some period before being dismissed on the grounds of conduct which amounted to a failure to comply with the employer’s equal opportunities and professional ethics policies.

Launching an unsuccessful internal appeal against the decision, proceedings were then issued in the Employment Tribunal. Dismissing the claim, this decision of the Employment Tribunal was subsequently upheld by the Employment Appeal Tribunal (EAT), who considered only claims relating to discrimination and unfair dismissal. Referring to the Employment Appeal Tribunal decision in the case of London Borough of Islington v Ladele [2009] ICR 387, the EAT found the reasoning in that case applied directly to the decision before it.

Referring to London Borough of Islington v Ladele, the Court of Appeal noted that the appeal in that decision had been heard after the EAT had given judgment in McFarlane; thus the Tribunal had not had the benefit of the higher court’s reasoning. Acknowledging the factual similarity of the two cases, the Court of Appeal recognised the binding nature of the Ladele decision.

Dismissing the claim put forward on behalf of the applicant that the court in Ladele had failed to properly consider relevant cases including Williamson v Secretary of State for Education and Employment [2003] QB 1300, the court found that the Ladele decision was not inconsistent with the earlier decision.

Including a witness statement submitted by Lord Carey of Clifton, a former Archbishop of Canterbury, the court found those observations to be misplaced, notably those comments relating to attitudes of the judiciary to Christian views.

Dismissing the application, the court found that Article 9 of the Human Rights Act (c. 42) and the common law offer protection to the holding and expressing of religious beliefs but in the context of a free society a distinction must be drawn between such protection and the protection of content of beliefs which are based on religious precepts.