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''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 ( , , , lit. ''The Dam on the ...
EWCA Civ 880;
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 ( , , , lit. ''The Dam on the ...
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 o ...
, 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 c ...
. The application was heard by Lord Justice Laws, 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, bisexual, and transgender (LGBT) people vary greatly by country or jurisdiction—encompassing everything from the legal recognition of same-sex marriage to the death penalty for homosexuality. Notably, , ...
, the intervention of former archbishop of Canterbury 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, ceremonial county and unitary authority in England. Situated on the River Avon, it is bordered by the ceremonial counties of Gloucestershire to the north and Somerset to the south. Bristol is the most populous city i ...
, employed as a relationship counsellor by the
Avon Avon may refer to: * River Avon (disambiguation), several rivers Organisations *Avon Buses, a bus operating company in Wirral, England *Avon Coachworks, a car body builder established in 1919 at Warwick, England, relaunched in 1922, following ...
branch of Relate, a charity providing relationship support including counselling for couples, families, young people and individuals,
sex therapy Sex therapy is a strategy for the improvement of sexual function and treatment of sexual dysfunction. This includes sexual dysfunctions such as premature ejaculation or delayed ejaculation, erectile dysfunction, lack of sexual interest or arousal, ...
,
mediation Mediation is a structured, interactive process where an impartial third party neutral assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are ...
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. The intent is that the important ...
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 Employment tribunals are tribunal public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, ...
, claiming discrimination on the ground of religion or belief, harassment, unfair dismissal 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 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 o ...
.


Employment Appeal Tribunal

McFarlane's action before 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 o ...
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
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 c ...
or the
Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an 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 rights contained in the European Con ...
. The Tribunal made particular reference to remarks by Lord Bingham in the House of Lords 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, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage ...
ceremonies.


Court of Appeal

McFarlane applied to the Court of Appeal 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 Lord Justice Laws on 15 April 2010. It contained a request that his case be heard before a specially constituted court comprising the
Lord Chief Justice Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or ...
and five Lords Justices with proven sensibility towards religious issues. A witness statement was also submitted in support of the application by the former archbishop of Canterbury, 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 (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
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
/ref>


See also

*
Christian Legal Centre The Christian Legal Centre (CLC) is a private company which was set up in December 2007 which acts in a number of high-profile cases on behalf of Christians in the United Kingdom who have found themselves in court on account of their faith, han ...
*
Christianity and homosexuality Throughout the majority of Christian history, most Christian theologians and denominations have considered homosexual behavior as immoral or sinful. Today, within Christianity, there are a variety of views on sexual orientation and homosexua ...
*
LGBT rights in the United Kingdom The rights of lesbian, gay, bisexual, and transgender (LGBT) people in the United Kingdom of Great Britain and Northern Ireland have varied over time. Prior to the formal introduction of Christianity in Britain in 597 AD, when Augustine of Ca ...
*
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 c ...


References

{{Reflist, 2


External links


Official transcript
Court of Appeal (England and Wales) cases United Kingdom equality case law Employment Appeal Tribunal cases 2010 in United Kingdom case law 2010 in LGBT history 2010 in religion