The Court of Appeal has handed down a reserved judgment on a permission application in McFarlane v Relate brought by the Christian counsellor dismissed for failing to give an unequivocal commitment to counsel same sex couples. The application was refused and claims of direct and indirect religious discrimination dismissed. The judgment, applying London Borough Islington v Ladele, is authority for the proposition that there is nothing in the Employment Equality (Religion or Belief) Regulations 2003 or Article 9 ECHR that entitled Mr Mcfarlane to refuse to provide counselling services to all sections of the community. Laws LJ held:
- it was impossible to contend that Ladele had been decided per incuriam;
- the tribunal and EAT had correctly distinguished between the conduct which led to the act complained of and the religious belief of which the conduct was an outward sign;
- the observations in Lord Carey's supporting witness statement were misplaced and arose from a misunderstanding as to the meaning attributed by the law to discrimination, in particular that the law forbids indirect discrimination not by reference to the actor's motives but by reference to the outcome of his acts or omissions;
- there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content. Only the former is protected.