''McFarlane v Relate Avon Ltd''

010 010 may refer to: * 10 (number) * 8 (number) in octal numeral notation * Motorola 68010, a microprocessor released by Motorola in 1982 * 010, the telephone area code of Beijing * 010, the Rotterdam Rotterdam ( , ; ; ) is the second-largest ...

EWCA Civ 880;

IRLR 872; 29 BHRC 249 was an application in the

Court of Appeal of England and Wales The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to ...

for permission to appeal against a decision of the

Employment Appeal Tribunal The Employment Appeal Tribunal is a tribunal in England and Wales and Scotland, and is a superior court of record. Its primary role is to hear appeals from Employment Tribunals in England, Scotland and Wales. It also hears appeals from decisions ...

, that a relationship counsellor dismissed for refusing to counsel same sex couples on sexual matters because of his Christian beliefs did not suffer discrimination under the

Employment Equality (Religion or Belief) Regulations 2003 The Employment Equality (Religion or Belief) Regulations 2003 is a plank of United Kingdom labour law designed to combat discrimination in relation to people's religion or belief, or absence of religion or belief. They were introduced in order to ...

. The application was heard by

Lord Justice Laws Sir John Grant McKenzie Laws (10 May 1945 – 5 April 2020) was a Lord Justice of Appeal. He served from 1999 to 2016. He was the Goodhart Visiting Professor of Legal Science at the University of Cambridge, and an Honorary Fellow of Robinson C ...

, who issued his decision on 29 April 2010 refusing the application. The case attracted significant media attention due to the issues involved, particularly the balance of religious and

LGBT rights Rights affecting lesbian, Gay men, gay, Bisexuality, bisexual, transgender and queer (LGBTQ) people vary greatly by country or jurisdiction—encompassing everything from the legal recognition of same-sex marriage to the Capital punishmen ...

, the intervention of former

archbishop of Canterbury The archbishop of Canterbury is the senior bishop and a principal leader of the Church of England, the Primus inter pares, ceremonial head of the worldwide Anglican Communion and the bishop of the diocese of Canterbury. The first archbishop ...

George Carey, Lord Carey of Clifton, who provided a witness statement in support of the application, and the judge's strongly worded rebuttal of the applicant's submissions.

Background

Gary McFarlane was a 48-year-old Christian from

Bristol Bristol () is a City status in the United Kingdom, cathedral city, unitary authority area and ceremonial county in South West England, the most populous city in the region. Built around the River Avon, Bristol, River Avon, it is bordered by t ...

, employed as a relationship counsellor by the Avon branch of

Relate Relate is a charity providing relationship support throughout England, Wales and Northern Ireland. Services include counselling for couples, families, young people and individuals, sex therapy, mediation and training courses. Relate also offer ...

, a charity providing relationship support including counselling for couples, families, young people and individuals,

sex therapy Sex therapy is a therapeutic strategy for the improvement of sexual function and treatment of sexual dysfunction. This includes dysfunctions such as premature ejaculation and delayed ejaculation, erectile dysfunction, lack of sexual interest or ...

mediation Mediation is a structured, voluntary process for resolving disputes, facilitated by a neutral third party known as the mediator. It is a structured, interactive process where an independent third party, the mediator, assists disputing parties ...

and training courses. He joined the organisation in August 2003, and a condition of his employment was acceptance of the group's

equal opportunities Equal opportunity is a state of fairness in which individuals are treated similarly, unhampered by artificial barriers, prejudices, or preferences, except when particular distinctions can be explicitly justified. For example, the intent of equa ...

policy, which required him to ensure "''that no person... eceiveless favourable treatment on the basis of characteristics, such as... sexual orientation...''". Relate was also a member of the British Association for Sexual and Relationship Therapy, whose Code of Ethics required the therapist to "''avoid discrimination... on grounds of... sexual orientation.''" Although the applicant had found himself capable of assisting same-sex couples in counselling where discussion of sexual issues was not involved, in September 2006 he applied to undertake a diploma course in psycho-sexual therapy (PST) (a new name for sex therapy). Managers at Relate considered his raising of a possible conscionable objection to assisting same-sex couples with sexual issues to be incompatible with the organisation's equal opportunities policy and would reduce the number of couples he were able to help. On 12 December 2007, the applicant was asked to confirm in writing he would continue to counsel same-sex clients in both relationship counselling and PST with regard to all the sexual issues they may have brought, and that he would agree to carry out relationship work where it involved same-sex sexual issues. In January 2008, McFarlane responded that he was unable to confirm this, and disciplinary proceedings were initiated. During these he confirmed that he would provide the required services to same-sex couples and the proceedings were ended. In March of that year however, he indicated to his supervisor that he might find it difficult to carry out such work, and on 18 March 2008, the applicant was dismissed from his post on the grounds: :That on 7 January 2008 you stated to Relate that you would comply with its Equal Opportunities policy and Professional Ethics policy in relation to work with same-sex couples and same-sex sexual activities, when you had and have no intention of complying with Relate's policies on those issues. The applicant undertook an unsuccessful internal appeal against dismissal, and subsequently applied to the Employment Tribunal, claiming discrimination on the ground of religion or belief, harassment,

unfair dismissal In labour law, unfair dismissal is an act of employment termination made without good reason or contrary to the country's specific legislation. Situation per country Australia Australia has long-standing protection for employees in relation to ...

and

wrongful dismissal In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contra ...

. The claim of wrongful dismissal was accepted on procedural grounds, but the other claims were dismissed, and the applicant appealed against the dismissal of the claims of discrimination and unfair dismissal to the

Employment Appeal Tribunal

McFarlane's action before the

was heard on 9–10 September 2009, and the judgement issued on 30 November. The Tribunal found that the applicant had suffered neither direct nor indirect discrimination under the

or the

Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an Act of Parliament (United Kingdom), Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the ...

. The Tribunal made particular reference to remarks by Lord Bingham in the

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

decision in '' R (Begum) v Denbigh High School'', that: Reference was also made to ''Ladele v London Borough of Islington'', a Christian registrar's unsuccessful appeal against dismissal for refusing to officiate

civil partnership A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, primarily created to provide legal recognition for same-sex couples. Civil unions grant some or all of the rights of marriage, with ch ...

ceremonies.

Court of Appeal

McFarlane applied to the

Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

to be allowed to appeal the decision of the Employment Appeal Tribunal, however his application was refused by Lord Justice Elias on 30 January 2010. A renewed application was made before

on 15 April 2010. It contained a request that his case be heard before a specially constituted court comprising the

Lord Chief Justice The Lord or Lady Chief Justice of England and Wales is the head of the judiciary of England and Wales and the president of the courts of England and Wales. Until 2005 the lord chief justice was the second-most senior judge of the English a ...

and five Lords Justices with proven sensibility towards religious issues. A witness statement was also submitted in support of the application by the former

, George Carey, Lord Carey of Clifton. The statement supported Mr McFarlane's request for a specially constituted court, and also sought to refute suggestions that Christian teaching on same-sex unions was discriminatory and that such views were equivalent to homophobia. The application was refused in a judgement delivered on 29 April 2010. Lord Justice Laws stated that: As religious beliefs were by their nature impossible to prove, they were necessarily subjective, and could therefore only be considered to bind the behaviour of the believer and not that of anyone else. He went on to state: :The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. 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. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself. The application was refused.

Consequent events

Mr McFarlane appealed to the

European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...

on freedom of religion grounds. The court rejected his complaint in January, 2013.ECtHR Chamber judgment in cases nos. 48420/10, 59842/10, 51671/10 and 36516/10
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References

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External links