Appeal No. UKEAT/0453/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 December 2008
	           Judgment handed down on 19 December 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS M McARTHUR BA FCIPD
MS B SWITZER 

LONDON BOROUGH OF ISLINGTON	APPELLANT

MISS L LADELE	RESPONDENT

LIBERTY	INTERVENOR

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS HELEN MOUNTFIELD
Instructed by:
London Borough of Islington (Legal Services)
Town Hall
Upper Street
LONDON
N1 2UD	
For the Respondent	MR JAMES DINGEMANS
(One of Her Majesty’s Counsel)
Instructed by:
Messrs Ormerods
Solicitors
Green Dragon House
64-70 High Street
CROYDON
Surrey 
CR0 9XN
	
For the Intervenor	MS KARON MONAGHAN
(One of Her Majesty’s Counsel) and
Professor AILEEN McCOLGAN
Instructed by:
LIBERTY
21 Tabard Street
LONDON
SE1 4LA	

SUMMARY

RELIGION OR BELIEF DISCRIMINATION

The claimant was a Registrar who, amongst other things, registered marriages.  When the Civil Partnerships Act came into force, she refused to participate in registering such partnerships because to do so was inconsistent with her religious beliefs.  The council insisted that she should undertake at least some of these duties, and disciplined her and threatened her with dismissal when she refused. 
She alleged that she had been discriminated against by reason of her religious belief in various ways.  The allegations were that there had been direct discrimination, indirect discrimination and harassment.   The indirect discrimination argument was based on the fact that the council had chosen to designate the claimant as someone suitable to do civil partnership work notwithstanding that they knew that she had genuine and strong religious reasons for not wanting to do it.  
  
The EAT held that the Tribunal had erred in law and that on the evidence adduced before the Tribunal there was no proper basis for a tribunal concluding that any of these forms of discrimination had been established.  

Accordingly, the appeal was upheld and a finding that there was no discrimination substituted. 

  

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	Ms Lilian Ladele is a strongly committed Christian. She was employed by the London Borough of Islington from 1992. She became a Registrar of Births, Deaths and Marriages on 14 November 2002. Until 1 December 2007 that was a statutory office held during the pleasure of the Registrar General under the Registration Services Act 1953. In that period she was not an employee of Islington, although Islington paid her salary. She was also under a duty at that time to abide by Islington’s policy. From 1 December 2007, pursuant to the provisions of the Statistics and Registration Act 2007, she became an employee of Islington. 

2.	Ms Ladele believes, as do many Christians, that marriage is the union of one man and one woman for life to the exclusion of all others. She believes that the Civil Partnership Act 2004, which allows males and females of the same sex to enter into civil partnerships recognised by law, in substance allows marriage between couples of the same sex. She considers such unions to be contrary to God’s laws and a sin.

3.	The Civil Partnership Act came into force on 5 December 2005. The effect of the Act, together with various other legislative amendments, is to give equivalent financial and legal recognition to same sex couples as apply to opposite sex couples who choose to marry. The council has emphasised in the course of this hearing that civil partnership is not, in fact, a marriage: see Wilkinson and Kitsinger v Attorney General and Lord Chancellor [2007] 1 FLR 295 at paragraphs 11.20 and 120-121. However, nothing turns on that in our judgment because the claimant’s objection was to the formal recognition of the status of civil partnerships in a form which she considered to be akin to marriage.  It is firmly established that it is not for the court to question the rationality of her beliefs; the protection is triggered for any genuine religious belief (with some very minor exceptions): see the observations of Lord Nicolls in R v Secretary of State ex parte Williamson [2005] 2 AC 246 para 22.   It is right to point out that the claimant contended that her objection was not simply directed against homosexuality.  She also considered it to be a sin for sexual relationships to take place outside marriage, whether homosexual or heterosexual.  

Ms Ladele’s objection.
4.	Ms Ladele made it plain from the summer of 2004 that she would have difficulties conducting civil partnerships because of her religious beliefs. She was then on long term sick leave between May and November 2005, the month before the new legislation came into effect.  By then the arrangements for dealing with the new civil partnerships had been determined.  The Registrar General had left it to each local superintendent registrar to make the appropriate arrangements.  

5.	The claimant’s line manager and Superintendent Registrar, Ms Mendez-Child, decided that civil partnership duty should be shared out among existing staff in roughly the same proportion as marriages. It is necessary specifically to designate a registrar as a civil partnership registrar before that person can register a civil partnership. Accordingly, in order to ensure that the load was shared Islington designated all its existing registrars, including Ms Ladele, civil partnership registrars. That was not something the claimant wished and she was not consulted about it.

6.	There were two other registrars who at this time also objected to carrying out these duties. One accepted an offer of different employment on the same pay, which removed the dilemma. Another, a Muslim woman who also raised similar objections, left the Council’s service.  These were apparently deputy registrars and as such were employees of the Council rather than independent office holders.

7.	The council were in discussions with the Registrar General’s office about the matter. Following advice from that quarter, Ms Ladele was offered the opportunity to undertake only civil partnership ceremonies confined to the simple signing process. This involves no more than obtaining certain information from the civil partners. There is another form which involves the couple concerned undertaking a ceremony which she would not have been required to do.  A Muslim with religious objections of a similar nature working in another borough had found this an acceptable compromise. 

8.	The letter setting out this offer was sent by Ms Mendez-Child on 1 April 2006.  It was stated to be a temporary measure which would be kept under review. The letter also threatened the claimant with disciplinary proceedings if she refused this offer:
“…your actions if you were to refuse to undertake any work in respect of civil partnerships, could be seen as a failure ‘to treat all members of the community and other employees fairly and equally, regardless of their sex, race, colour, national or ethnic origin, sexuality, religion, age, disability or marital status’ and this could be considered gross misconduct. In this case you might also be subject to formal disciplinary action.”

9.	Ms Ladele was asked to sign and return a copy of the letter to confirm that she would carry out these duties. She did not do so.  Instead, she responded with a letter to Ms Mendez-Child dated 18 April 2006 in which she made it plain that she rejected the compromise solution. She set out what she said was the “formal record” of her concerns. She emphasised that she was placed in a dilemma and had either to honour her faith or the demands of the council. She asked for the council to consider the difficulty she faced and to try to accommodate her concerns so that she could combine her work with her Christian commitments. She asked for sympathetic treatment as a member of a minority. The letter was referred by Ms Mendez-Child to Mr Lynch, who was Head of Democratic Services.  He did not think it necessary to reply and so no reply was ever sent. 

10.	At this stage the claimant avoided doing any work involving civil partnerships by agreeing with colleagues to change their rosters where civil partnerships were involved. Management had turned a blind eye to this in practice. However, there were still tensions within the department; in particular from two gay employees whom the Tribunal simply identified as Dion and Viktoria. Ms Ladele complained to Mrs Mendez-Child on the 18 October 2006 that she was not receiving support from the team.

11.	Then on 2 November 2006 there was a team meeting, in which the Minutes report this:
“John [i.e. Mr Lynch] said that as long as we were under the control of GRO then things would remain the way they are. Once we become part of the local authority and we become local government employees and conform to local government guidelines then the way things have been handled will change. ”
At that meeting the claimant said that she was extremely upset and felt victimised because of her religious beliefs and was being picked upon on a daily basis. Dion responded by saying that he felt like a second class citizen and that it was gay people who were being discriminated against. 

12.	Dion and Viktoria wrote a letter on 14 November to Ms Mendez-Child, again complaining that certain members of staff were refusing to do civil partnerships and that it was a breach of the Dignity for All Policy. They alleged that it was an act of homophobia and that they felt discriminated against. They specifically requested that they should be told by 30 November how the matter was going to be resolved.

13.	There was a reply from Mr Lynch which was expressed to be on a confidential basis. It was not copied to the claimant. The letter said this:
“… I trust that you will treat this in confidence as it contains personal information concerning staff … I advise that I wish to take disciplinary action against any staff who refuses to undertake these duties for the reasons that you have already outlined. I was advised by GRO that I would be unsuccessful in action taken against Lilian as she was a statutory officer and as civil partnerships were never part of her original duties and not part of her contract of employment that she has signed. Until she transfers to local authority control from the Registrar General there is little I can do. …”

14.	The difficult and tense atmosphere continued. On 17 January 2007 Ms Ladele went to see Mr Lynch and she raised allegations of being unfairly treated. He told her - and apparently this was the first time she knew about this - that members of staff had spoken to him about her attitude. The notes of the meeting record, amongst other matters, the following:
“I also advised her about the CP issues and that when she transferred to local authority control the Council would not accept her views that she did not agree with CPs as this direct discrimination and against the staff code and the Council’s Dignity for All policy. The Council would take disciplinary action against her which could ultimately lead to her dismissal.
I advised that the gay and lesbian staff in the office had felt directly discriminated by her actions. Again, I wanted these issues dealt with at the away day.”

15.	The reference to the away day is to the ‘Registrars Service Away Day’ on 22 February 2007.  The issue of civil partnership was raised.  The minutes show that Mr Lynch had made it clear that it was Islington’s position that affording staff the opportunity not to undertake civil partnership ceremonies was contrary to the council’s Dignity for All policy and the staff code of conduct.  The Dignity for All policy states that it is the council’s aim to promote equality for all groups, targeting especially “discrimination based on age, gender, race, religion and sexuality.” The policy applies both to staff and to customers in receipt of council services. The policy expressly provides that “All employees are expected to promote these values at all times and to work within the policy.  Employees found to be in breach of this policy may face disciplinary action.”

16.	Matters further deteriorated with further complaints from Dion and Viktoria and in May, Mr Lynch decided to instigate the disciplinary process and set up a preliminary investigation. This was conducted by Mr Daniels, the Assistant Director of Law. He interviewed both the claimant and Mr Lynch. 

17.	The investigatory note records that the Registrar General Inspector had advised that there was no obligation to impose civil partnership duties on the claimant and indeed it was not part of her job description. That was fully recognised by Mr Lynch. The investigatory note also observed, however, that the claimant was carrying out certain other duties, such as citizenship ceremonies and renewal of vows, which were not in her original job description, and she did so without complaint. 

18.	Mr Daniels recommended that a formal complaint be brought against the claimant under the council’s Discipline Procedure. The nature of the complaint was as follows:
	“That on or from 16 April 2006 you have failed to comply with paragraphs 4.6 and 4.7 of the council’s Code of Conduct for Employees and the council’s Quality & Diversity Policy ‘Dignity for All’ by refusing to carry out work in relation to the civil partnerships service solely on the grounds of sexual orientation of the customers of that service”.

19.	The disciplinary hearing took place on 16 August 2007. It was conducted by Louise Round, the Director of Corporate Services. Ms Ladele accepted that she had conducted the matter with conspicuous care and sensitivity. The decision was, however, that the council should not accommodate Ms Ladele’s wish and that should she continue to refuse to conduct civil partnerships then the council would have seriously to consider its position. However, the letter did expressly state that no formal allegations of misconduct had been made at that stage and it offered a further attempt at mediation.  In addition, Ms Round reiterated the offer that the claimant’s participation could be limited to straightforward signing of the register, and that she need not involve herself with ceremonies as such.

20.	The claimant never has done any civil partnership work; the status quo has been maintained during the legal proceedings.  

21.	With effect from 1 December 2007 the claimant ceased to be a statutory office holder and became an employee of the council.  At all material times, however, she was an office holder.

22.	There was one further consequence of the claimant adopting the position she did. The position of Assistant Superintendent Registrar became available when the incumbent was on maternity leave. The claimant was not considered for that position because of the stance she had adopted. She did not formally apply for the post, but it is accepted that this was because she knew that she would inevitably fail to get it.

23.	The Tribunal observed that the evidence demonstrated that in other regions accommodation had been made to allow those with strong religious beliefs not to have to carry out civil partnership duties. The relevant registrar would not be designated for civil partnership services or else the work would be distributed to other registrars who had no concerns about performing those ceremonies. That was a line that Islington Council could have taken. It is not suggested that it would have been administratively difficult to have structured arrangements in that way. The council felt that to make that accommodation was wrong.  

The statutory framework.
24.	The Employment and Equality (Religion or Belief) Regulations 2003 (the Regulations) (A2) give effect to EU Directive 2000/78 EC (the Framework Directive).  The domestic legislation must be interpreted so as to give effect to it. In addition, by section 3 of the Human Rights Act the legislation has to be read in conformity with Article 9 of the EHCR.
25.	Regulation 2(1) of the Regulations (as amended by the Equality Act 2006) provides that any religion or belief, as well as any philosophical belief, is protected by the regulations, (including lack of religion or belief).

26.	Regulation 3 of the Regulations provides:
“(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if –
(a)	On grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or
(b)	A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but
(i) which puts or would put B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.
(2) The reference in paragraph (1)(a) to religion or belief does not include A’s religion or belief.
(3) A comparison of B’s case with that of another person under paragraph  (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

27.	Regulation 3 thus makes the familiar distinction between direct and indirect  discrimination; regulation 3(1)(a) covers the former and 3(1)(b) the latter.  The test of direct discrimination involves a comparison with “other persons” (the statutory comparison), and regulation 3(3) identifies how that comparison should be made: the relevant circumstances must be the same or not materially different.

28.	Regulation 5 of the deals with discrimination by way of harassment and provides: 
“(1)  For the purposes of these Regulations, a person (A) subjects another person (B) to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect of -
(a)  violating B’s dignity; or
(b)	creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2)  Conduct shall be regarded as having the effect specified  in paragraph (1)(a) or (b) only if, having regard to all the circumstances,  including in particular the perception of B, it should reasonably be considered to have that effect”.

29.	These provisions are applied to office holders by regulation 10, and to employees by regulation 6.  Regulation 10(3)(d) specifically states that it is unlawful on religious grounds to subject an office holder to a detriment.

Direct discrimination.
30.	It is to be noted that the concept of direct discrimination in regulation 3(1)(a) closely reflects that found in Article 2(1) of the Framework Directive.  This provides: 
“direct discrimination shall be taken to occur where one person is treated less favourably than another is, or has been, or would be treated in a comparable situation, on [any of the prohibited grounds.”

31.	In order to analyse the approach of this Tribunal to the question of direct discrimination, it is necessary to make some observations about the scope and application of that concept.

32.	The concept of direct discrimination is fundamentally a simple one. A claimant suffers some form of detriment (using that term very broadly) and the reason for that detrimental treatment is the prohibited ground.  There is implicit in that analysis the fact that someone in a similar position to whom that ground did not apply (the comparator) would not have suffered the detriment   By establishing that the reason for the detrimental treatment is the prohibited reason, the claimant necessarily establishes at one and the same time that he or she is less favourably treated than the comparator who did not share the prohibited characteristic. Accordingly, although the Directive and the Regulations both identify the need for a tribunal to determine how a comparator was or would have been treated, that conclusion is necessarily encompassed in the finding that the claimant suffered the detriment on the prohibited ground. So a finding of discrimination can be made without the tribunal needing specifically to identify the precise characteristics of the comparator at all.   

33.	Sometimes a claimant wishes to support his or her case by identifying an actual comparator who was treated differently to the claimant.  In order to be the statutory comparator (as defined, for example, in regulation 3(3) of the 2003 Regulations) the relevant circumstances must be the same or at least not materially different (which is the same thing.)  In practice there are rarely actual comparators who fall into that category.  

34.	Where an actual comparator is relied upon, there is often much dispute as to what whether the relevant circumstances are the same or not.  However, even where the actual comparator chosen by the claimant does not have all the characteristics of the statutory comparator - because there are material differences between the claimant’s position and that of the comparator - evidence of how the actual comparator was treated may still have some evidential value.  The treatment of the actual comparator might cast some light upon how the statutory comparator would have been treated.  Whether and to what extent it will do so is likely to depend upon how significant the material differences are between the actual and the statutory comparators.   

35.	Where no actual comparator is relied upon, the claimant frequently seeks to identify a hypothetical comparator. This is the idealised person who has the characteristics of the statutory comparator.  As with the actual comparator, there is often much debate and dispute about who is the appropriate statutory comparator.  However, in practice a Tribunal is unlikely to be able to identify the statutory or hypothetical comparator without first answering the question why the claimant was treated as he or she was.  

36.	Take a simple example.  A claimant alleges that he did not get a job because of his race.  The employer says that it is because he was not academically clever enough and there is evidence to show that the person appointed to the job had better academic qualifications.  The claimant alleges that this was irrelevant to the appointment; it was not therefore a material difference. The employer contends that it is a critical difference between the two situations.  If the Tribunal is satisfied that the real reason is race, then the academic qualifications are irrelevant.  The relevant circumstances are not therefore materially different.  It is plain that the statutory comparator was treated differently.   If the tribunal is satisfied that the real reason is the difference in academic qualifications, then that provides a material difference between the position of the applicant and the comparator.  

37.	The determination of the comparator depends upon the reason for the difference in treatment.  This point is more elegantly made by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 paras 7-11.  

38.	In short, the use of comparators may be of evidential value in determining the reason why the claimant was treated as he or she was. Frequently, however, they cast no useful light on that question at all.  This analysis of the value of comparators is drawn from the valuable passage in the judgment of Lord Hoffmann in Watt (formerly Carter) v Ashan [2008] ICR 82 reproduced below.

39.	Furthermore, there is a particular situation where a focus on how the comparator was or would have been treated can be positively misleading.   This arises because it is now well established that there will be unlawful discrimination where the prohibited ground contributes to an act or decision even though it is not the sole or principal reason for the act or decision.  It follows that there will inevitably be circumstances where an employee has a claim for unlawful discrimination even though he would have been subject to precisely the same treatment even if there had been no discrimination, because the prohibited ground merely reinforces a decision that would have been taken for lawful reasons.  In these circumstances the statutory comparator would have been treated in the same way as the claimant was treated.  Therefore if a tribunal seeks to determine whether there is liability by asking whether the claimant was less favourably treated than the statutory comparator would have been, that will give the wrong answer.

40.	Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities: 

(1)	In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] ICR 877, 884E – “this is the crucial question”.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

(2)	If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.886F) as explained by Peter Gibson LJ in Igen v Wong [2005] ICR 931, para 37.   

(3)	As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen v Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination: 
“Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.”

If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the Tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great  Britain-China Centre [1991] IRLR 513.)

(4)  The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employee has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.    As Lord Browne Wilkinson pointed out in Zafar v Glasgow City Council [1997] ICR 120:
“it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.”

Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see 
the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paras 100-101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.  

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] ICR 897 paras.28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp.para.10.

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated.  The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ashan [2008] ICR 82, a case of direct race discrimination by the Labour Party.  Lord Hoffmann summarised the position as follows (paras.36-37): 
“36 The discrimination … is defined … as treating someone on racial grounds "less favourably than he treats or would treat other persons". The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise: 
(1)  The test for discrimination involves a comparison between the treatment of the complainant and another person (the "statutory comparator") actual or hypothetical, who is not of the same sex or racial group, as the case may be.
(2)  The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant…
 (3)  The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the "evidential comparator") to those of the complainant and all the other evidence in the case.
37	It is probably uncommon to find a real person who qualifies….. as a statutory comparator. Lord Rodger's example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.”

41.	The logic of Lord Hoffmann’s analysis is that if the Tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator? This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was.  Accordingly:
“employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.” (para 10)
This approach is also consistent with the proposition in point (5) above.  The construction of the statutory comparator has to be identified at the first stage of the Igen principles.  But it may not be necessary to engage with the first stage at all.  

The Tribunal hearing.
42.	In her Claim Form the claimant recounted the history of the matter and asserted that her treatment amounted to direct discrimination, as well as indirect discrimination, and she alleged that she had been subject to harassment, bullying and less favourable treatment because of her Christian faith and beliefs. She says that far from taking steps to deal with this, the council had acquiesced in it. 

43.	The claimant in her list of issues identified a number of alleged acts of discrimination which were subsequently considered in detail by the Tribunal. These included a whole series of acts which she thought were unacceptable.  For the most part, the Tribunal upheld her claims.  

44.	They found the following acts to constitute unlawful acts of direct discrimination: designating her a Civil Partnership Registrar and requiring her to carry out duties in breach of her contract; subjecting her to the disciplinary process from May 2007 onwards; finding her guilty of gross misconduct and threatening her with dismissal if she did not perform these duties; failing to consider her for the post of additional superintendent registrar when the incumbent was on maternity leave; failing to address allegations that she was homophobic;  failing to address her own concerns that she had been treated in a discriminatory fashion; failing to apply the Code of Conduct and Dignity for All Policy to the gay registrars; the fact that Mr Daniels, who carried out the investigation, had referred to her letter of 18 April as itself an act of gross misconduct; and sharing details with other members of staff about action it was proposed to take against the claimant in breach of the council’s confidentiality policy.

45.	There was some overlap between the alleged acts of direct discrimination and the  alleged acts of harassment.  The Tribunal found that the following acts constituted harassment: the failure by Ms Mendez-Childs to take the claimant’s views seriously; the complaint by colleagues that she was homophobic and that they were being victimised by her, which complaints management did nothing to dispel; breaching her confidentiality; refusing to consider her for the maternity leave position.; the allegation that she was directly discriminating towards her colleagues and others; and some of the matters which had allegedly constituted direct discrimination.

46.	The Tribunal, in a lengthy judgment, found all claims established to some extent. Where they did not, it was because they were not satisfied that the alleged act had been committed.

Direct Discrimination.
47.	The Tribunal reminded itself of the guidance set down in Igen Ltd v Wong and expressly set it out. The council’s argument was very simple: they had not discriminated on grounds of religion and belief. They had simply applied the same rule to all registrars, namely that they should carry out both civil partnerships and marriages, and the claimant was treated no differently from anyone else.  Had anyone refused to carry out civil partnership duties, they would have been treated in the same way irrespective of their beliefs.

48.	The Tribunal rejected this in what we have to say is a somewhat confusing way (paras 52 and 53):
“52 Mr A Lynch, for the Respondent, argued that the adverse treatment to Ms Ladele was not on the grounds of her religion or belief. He submitted that the Respondent required all its existing Registrars to be Civil Partnership Registrars and that the rule applied equally to all Registrars so that Ms Ladele was not singled out. Mr A Lynch argued that Ms Ladele’s orthodox Christian views were unconnected to the Respondent’s decision. We reject this submission. The argument goes to the burden of proof. Applying a rule to all registrars does not mean that the Respondent has demonstrated that it did not commit an act of discrimination. We analyse the acts complained of below.
53	The Tribunal accepts the submission of Mr Dingemans that it would be wrong for one set of rights to “trump” another. The present dispute arises from a direct conflict between the rights of one protected group with the rights of another protected group.”

49.	In fairness to the Tribunal, we suspect that Mr Dingemans is right to say that the Tribunal in paragraph 52 probably meant that Mr Lynch’s argument went to the question of proof rather than the burden of proof.  The last sentence of that paragraph is not easy to understand. Mr Dingemans accepts that a rule applied to all without exceptions cannot constitute direct discrimination; he suggests that the Tribunal merely meant that this was not necessarily an answer to the other specific and distinct claims of discrimination. 

50.	The Tribunal then looked at what it termed “various detriments” and it considered the evidence in relation to each of these detriments. There were 11 separate matters referred to. All bar one succeeded. We have summarised the successful claims above. We will not deal in detail with the way the Tribunal reached its conclusion with respect to each particular allegation, but will simply identify the approach of the Tribunal by selecting three of the alleged acts of discrimination.

Preliminary observations.
51.	We have heard extensive argument and submissions about the finding of direct discrimination in this case.  However, we think it is necessary to stand back and consider the nature of the claimant’s grievance.  Her starting point is that she was directly discriminated against because of her religious beliefs when she was required to undertake civil partnership duties.  

52.	In our judgment, the argument that this constitutes direct discrimination is quite unsustainable, essentially for the reasons advanced by the council.  The claimant’s complaint on this score is not that she was treated differently from others; rather it was that she was not treated differently when she ought to have been.   The council refused to make an exception of her because of her religious convictions. That is a complaint about a failure to accommodate her difference, rather than a complaint that she is being discriminated against because of that difference. The council has been blind to her religion, and she submits that they ought not to have been. 

53.	It cannot constitute direct discrimination to treat all employees in precisely the same way. 	It could be direct discrimination if the employer was willing to make exceptions to the general rule but was not willing to do so for a particular worker by reason of a legally prohibited ground.  But that is not this case.  Of course, a failure to accommodate difference may well give rise to a claim of indirect discrimination; the very nature of that claim typically starts from the premise that the same apparently neutral rule applies equally to all but has an adverse effect on a particular group.  Where that is so, the rule needs to be justified.

54.	It is true that the remaining complaints are not of this kind. They do allege that the claimant has been treated differently from the way others have been or would have been treated.  This may be all the Tribunal meant in the last sentence of paragraph 52. However, the ostensible reason for most of the conduct which is the subject of complaint stemmed from the council’s refusal to accept that the claimant should be permitted to refuse to do the relevant duties.  If that was the genuine reason for their treatment of the claimant, then she is plainly not being discriminated against for her religious belief itself. That is so even although her reason for refusing was her religious belief.  

55.	It is true that the council would be objecting to her putting that belief into practice, but it would still be her conduct rather than her beliefs which would then be the reason for the treatment. If I burn down my employer’s factory because of my philosophical anarchist beliefs, an employer who dismisses me thereafter for burning down the factory is not doing so because of my philosophical beliefs. Those beliefs may be the reason for my action, but they are not the reason for the employer’s response.   

The Tribunal’s analysis.
56.	We deal with the first detriment relied upon, which the Tribunal dealt with as follows (paras 54-56 of the decision):
“54 The first detriment relied upon is:
“(14) Sharing details of its actions and proposed actions with other staff in breach of the Claimant’s right of confidentiality under the Respondent’s Confidentiality Policy in November 2006 and failing to redress the further breach of confidentiality by members of staff who proceeded to share this same confidential information in the Respondent’s LGBT Forum in November 2006.”
55 Paragraph 17.1 of the Respondent’s Code of Conduct for Employees (page 4534) provides:
“Managers must make sure that they have secure systems in their workplace to safeguard confidential information and that their staff maintain confidentiality at all times. They must also comply with the Council’s policies and practices under the Data Protection Act 1998.”

57.	The Tribunal then found that the letter from Mr Lynch to Dion and Viktoria dated 15 November 2006 was a clear breach of this policy and continued:
“In relation to this detriment (14) Ms Ladele has demonstrated that she did suffer a detriment. Ms Ladele compares herself with another hypothetical office holder or employee who is protected by the Council’s Dignity for All policy. In the alternative, she compares herself with a hypothetical Registrar of orthodox Jewish faith who felt unable to work on Saturdays, and, in the second alternative, Regulation 3 being to protect freedom of religion and freedom of expression, no comparator is necessary. It is said that a comparator, who was a hypothetical office holder protected by the Dignity for All policy, who relied on another ground of discrimination would not have been treated in the same way. The evidence the Tribunal has before it was that the Respondent acted swiftly in dealing with the complaints of discrimination on the grounds of sexual orientation by Dion and Viktoria. Their complaint was dated 14 November and the response dated 15 November. Against that background the Tribunal could infer that Ms Ladele had been treated less favourably on the grounds of her religion or belief and, therefore, it is for the Respondent to show they did not commit these acts. On the evidence before the Tribunal, Mr Lynch has conceded that he did breach Ms Ladele’s right of confidentiality and the evidence before the Tribunal from the investigatory meeting is that the confidential information was passed to the LGBT Forum. In these circumstances the unanimous judgment of the Tribunal is that the claim of discrimination on the grounds of religion or belief succeeds in relation to point (14).”

58.	The reasoning appears to be as follows:

(1) The claimant suffered a detriment, namely being subject to a breach of the council’s confidentiality POS policy.

(2) The same conduct would not have been meted out to a person who was protected by the Dignity for All Policy but who relied on some other ground of discrimination. There was, for example, evidence that the complaint of the two gay registrars had been taken up and dealt with in a very different way to that afforded to the claimant.

(3) That fact enabled the Tribunal to infer that there had been less favourable treatment on the grounds of religion and belief.

(4) That inference can only be rebutted if the council shows it did not commit the act, and in this case it was conceded that the unlawful act was committed. 

59.	This analysis betrays a number of errors of law. First and fundamentally, Igen v Wong has not been properly applied.  Even if at the first stage there is sufficient evidence from which an inference of discrimination could be made, the application of the second stage requires consideration of the explanation given by the employer for the less favourable treatment.  Unless the tribunal is satisfied that the reason was not religion (or whatever the prohibited ground of discrimination may be) then it must infer that there is discrimination.  If however, it is satisfied that the reason is non-discriminatory (even if in other respects the conduct is unreasonable) then no discrimination has occurred.

60.	The Tribunal has not adopted that approach. They have asked at the second stage whether the employer has satisfied them that the alleged detriment did not occur.  That tells us nothing about why it occurred, which is the focus of the inquiry.  On this count alone, the conclusion of the Tribunal cannot stand.   

61.	Furthermore, this is an error which is repeated with respect to each of the findings of direct discrimination save for one. (That is the finding that Mr Daniels said that the letter of 18 April was itself an act of gross misconduct. For reasons we give below, we think that conclusion is not sound in any event.)  But even if the Tribunal’s directions on this single alleged act of discrimination were impeccable, we would not have been willing to uphold that conclusion because given the fundamental misdirection with respect to each of the other allegations, we cannot be sure that the Tribunal had in fact applied the test properly on this occasion.

62.	There are, moreover, further errors. In our judgment, there was no adequate basis for concluding that there was evidence from which the Tribunal could properly infer that the reason for disclosing the confidential information was the religious belief of the claimant. The conduct of Mr Lynch in breaching confidence was improper; it was a breach of the employee’s rights under the confidentiality code and it was unreasonable. 

63.	However, as we have emphasised, the fact that the conduct was unreasonable does not demonstrate that it was for a prohibited reason. The only evidence relied upon to sustain that conclusion is the Tribunal’s finding that when Dion and Viktoria made a complaint of discrimination on grounds of sexual orientation, their case was quickly dealt with, whereas the allegation by the claimant that she had been discriminated on religious grounds was not pursued by management at all. Indeed, it seems that this was the basis for the finding with respect to each of the findings of direct discrimination.

64.	We accept Ms Mountfield’s submission that the two gay registrars are not appropriate statutory comparators within the meaning of regulation 3(3).  The proper hypothetical or statutory comparator here is another registrar who refused to conduct civil partnership work because of antipathy to the concept of same sex relationships but which antipathy was not connected or based upon his or her religious belief. If the Tribunal were to be satisfied that such a person would equally have been required to carry out civil partnership duties and would have been subject to the similar disciplinary process if he or she had refused, then that necessarily prevents any finding that there has been direct discrimination on grounds of religion or religious belief.

65.	Mr Dingemans submits that this cannot be an appropriate comparator because such a person is not covered by the council’s own Dignity for All Policy. He says that the Tribunal were right to treat the two gay registrars as appropriate actual comparators since the essence of the council’s position was to enforce the Dignity for All Policy.  There was a striking difference between management’s response to their sexual orientation and the claimant’s religion.

66.	We do not accept that submission.  This comparison is inappropriate; the circumstances are too dissimilar.  The complaints of the two gay registrars were materially different from those of the claimant. She was challenging the council’s decision not to accommodate her religious beliefs by permitting her to refuse to carry out civil partnerships; they were in no sense seeking to be exempt from performing the duties of the post.  Indeed, they were complaining that it was wrong, because discriminatory, for the claimant to be permitted to be so exempt.  So different are the circumstances that we do not believe that these comparators are of any evidential value at all.  Even if they are, they are insufficient to justify a finding of prima facie discrimination so as to shift the burden of proof onto the employer.

67.	We accept that the Tribunal was entitled to conclude that management was far more sympathetic to the concerns expressed by the two gay registrars than to the claimant’s religious views.  Mr Lynch and Ms Mendez-Child clearly thought that it was unacceptable discrimination for the claimant to refuse to participate in civil partnership ceremonies; it offended some gay employees and involved discriminating against third parties making use of the services of the council.  However, it is not possible to infer from that fact that the real reason they acted as they did was her belief rather than her conduct.  

68.	Nor is it a breach of the law for management to lack sympathy for the beliefs of certain employees.  Christian managers may be wholly unsympathetic to the atheist views of their staff, and vice versa.  That does not involve a breach of these regulations.  Provided they do not discriminate against them because of those beliefs, that is enough. They must tolerate the beliefs and not subject the staff to any disadvantage because of them; but they do not have to agree with them, or even consider them to have any merit.  Furthermore, even if the council acted in this way because they were being pressed to do something by the two gay registrars -and further information which apparently came to light after the Tribunal hearing strongly suggests that that was the position- that would not make the reason for the treatment the claimant’s religious beliefs.

69.	In our judgment, the Tribunal has fallen into the trap of confusing the council’s reasons for treating the claimant as they did with her reasons for acting as she did. As we have said, these are not the same thing at all.  If any support is needed for that self evident proposition, it is found both in authority and policy. 

70.	In Azmi v Kirklees Borough Council [2007] IRLR 484 a Muslim woman challenged a school’s refusal to permit her to wear the hijab. She was a language support teacher who provided such support for students with English as an additional language.  The school adduced evidence before the Employment Tribunal to show that language support was more effective when the teacher’s face was visible. It refused her request for that reason.  Her claim for direct discrimination failed. (The Tribunal considered that there was clearly prima facie indirect discrimination, although it was justified on the facts). The reason the claimant wished to wear the hijab was her religious belief; the reason she was not allowed to do so was because it interfered with her effectiveness as a teacher.

71.	In McClintock v Department of Constitutional Affairs [2008] IRLR 29 a magistrate  alleged that he had been directly discriminated against for refusing to place children seeking adoption with same sex couples.  The Department insisted that he should apply the law in accordance with his judicial oath.  The claim of direct discrimination failed before the Employment Tribunal and was not pursued before the EAT (Elias P presiding).  The President commented that it was “prudent” not to pursue the issue; the evidence was that anyone who was not prepared to give effect to the judicial oath would have been similarly treated.   His treatment was not because of his religious beliefs but because of his refusal to honour the oath. (In fact he was not able to establish that his objections were based on religious grounds in any event.)

72.	As to considerations of policy, direct discrimination of course cannot be justified. If the Tribunal were right to say that the fact that the claimant’s conduct was the result of her religious beliefs meant that she was being discriminated against on religious grounds, the employer could never justify any refusal to accede to an employee’s demands that he should be permitted to manifest his religious beliefs, however bizarre they may be. For example, an employee who refused to work on a particular day or days of the week for religious reasons, or who insists on praying at various times in the day, or who submits that carrying out various duties is incompatible with his or her religious doctrine, could in all cases be entitled to insist on doing these things and the employer would be obliged in all cases to accede to these demands. 

73.	As Ms Mountfield put it, the religious belief would be a solvent dissolving all inconsistent legal obligations owed to the employer.   That plainly cannot be right.  Indeed, given in particular the fact that beliefs may cover a vast range of subjective opinions, the consequences would be extraordinary.  

74.	We analyse one further incident, which was the conclusion of the council that the claimant committed gross misconduct. The Tribunal dealt with that as follows (para 68):
“The Respondent did conclude that Ms Ladele had committed gross misconduct. She has thus suffered a detriment. The reason for the Respondent’s conclusion was that her religion or belief prevented her from undertaking Civil Partnership duties. The Tribunal could, in these circumstances, draw an inference of discrimination. The reason for the Respondent’s conclusion of gross misconduct was because of Ms Ladele’s religion or belief. The Respondent cannot show that it did not commit the act and, in these circumstances, the claim must succeed.”(emphasis added.)

75.	We see the similar errors to those identified the earlier example.  Again, there is the misapplication of Igen v Wong; stage one remains un-rebutted because the council is unable to deny that the alleged less favourable treatment occurred.  Second, the italicised words show that the Tribunal is, in fact, asserting what it has to establish, namely that the reason was religion or belief.  That is confusing her reason for her stance with the council’s reason for taking the action they did. Furthermore, if correct, there was nothing to infer; the discrimination was established. Third, there is no evidence adduced from which the alleged unlawful discrimination could properly be inferred.  Fourth, in any event the evidential basis for reaching the conclusion is nowhere identified.

76.	As we have said, these errors are repeated at various points throughout the analysis of direct discrimination. In particular, there is the misunderstanding of the application of the second stage in Igen.  The only exception to that is the finding that Mr Daniels had referred to the letter of 18 April as itself constituting a free standing act of gross misconduct.  The Tribunal recorded that not only were the council unable either to prove that he did not do that, neither could they show that it was not done on grounds of religion or belief and therefore the breach was established.  

77.	We agree that this characterisation of a thoughtful and temperate letter was extraordinary and unreasonable (although it was not in fact identified as a subject for the disciplinary hearing). We have some doubts whether a bare assertion of this nature is capable of constituting a detriment, but we have heard no argument about that and will assume that it can. 

78.	However, there needs to be a much more detailed analysis of this detriment than was provided.  Did Mr Daniels genuinely believe that it was gross misconduct?   If so - and it does not seem that the genuineness of his opinion was challenged - it is difficult to see how it could be said that this was discrimination on the prohibited ground.  His legal analysis may have been weak, and possibly he may have misunderstood the extent of the protection afforded to the claimant in law.   But that does not mean that he formed this view because of the claimant’s religious belief.  Of course, if he did not genuinely believe that the letter did amount to gross misconduct and only said so because of her religious belief, that would constitute unlawful discrimination.  However, the case does not appear to have been run on that basis and there was no evidence that this was the reason he made this allegation.

79.	Even if an unreasonable assertion of this nature were sufficient to cross the first stage of establishing a prima facie case of discrimination, it is then necessary to focus on the explanation.  We do not know what the evidence was about that; the striking thing is that the tribunal baldly states that the council was unable to show that the reason was not a discriminatory one without identifying what the explanation was or why it rejected it. 

80.	It appears that they may have again made the inference that Mr Daniels’ reason for this characterising the claimant’s letter in that way was the same as the claimant’s reason for refusing to do the work. In fact, the evidence relating to Mr Daniels’ involvement strongly suggests that religious belief played no part in that assertion. His recommendation was that the charge against the claimant should be that “she refused to do civil partnership work solely on the grounds of the sexual orientation of the customers.”  That is powerful evidence that his objection was to her refusing to carry out her duties rather than her religious beliefs themselves.  The charge was not that she should be disciplined because of the views she held.  There appears to be no proper basis for inferring that this alleged detriment would have been motivated by different considerations.

81.	Finally, we should also briefly mention the failure to consider the claimant for the temporary post of superintendent registrar because we were taken to various passages of the evidence relating to that matter.  Again, the Tribunal wrongly applied the second stage of the Igen test when considering this issue. It also drew a comparison with a hypothetical comparator which we have found to be inappropriate. We should add that having looked at the passages of the evidence, we see nothing that supports the conclusion that the reason for refusing to allow the claimant to apply for this job was her religious belief rather than the reason given, namely that she was an inappropriate choice because she would not do the full range of the work.

The implications of this conclusion.
82.	In our judgment, therefore, the Tribunal failed properly to apply the established principles of direct discrimination.  Mr Dingemans submits that in these circumstances the matter should be submitted to a fresh Tribunal to consider the matter again.  The question then arising is this.  Is it open to a tribunal to find that the treatment meted out to the claimant was because of her religious beliefs or was it for some other reason, such as because of her conduct in refusing to carry out civil partnership duties? If there were some evidence that the reason was the religious belief then that would provide a justification for putting the matter before a fresh Tribunal.

83.	Mr Dingemans strongly submits that there was plenty of evidence from which a Tribunal could infer direct discrimination. He relies in particular upon the following matters.  First, there is clear evidence that management did not seek to support the claimant in the same way as the two gay registrars who opposed them.  As we have said, it is a reasonable conclusion that they did not, but it does not support the inference that the discrimination was on grounds of religious belief.  

84.	Second, he places considerable emphasis on the fact that the council knew about the claimant’s religious objection before designating her as a registrar suited to doing this job; and in addition they knew that she could not legally be obliged to carry out these tasks. 

85.	We do not see how either factor can assist her in her direct discrimination claim (although the former could be relevant to a consideration of indirect discrimination.) As to the prior knowledge of her objections, it is impossible to contend that the council designated her as someone qualified to carry out this work because of her religious beliefs.  As we have observed, her grievance was that she should not have been designated because of those beliefs; the council treated all alike but she contended that her situation demanded that she should be treated differently.  That failure to accommodate her beliefs does not begin to support a claim for direct discrimination.

86.	As to the fact that they could not compel her to carry out these duties, even assuming this to be true (and we accept that this was the understanding of the council) it does not lend any support to her claim for direct discrimination.  She was not objecting to carrying out these duties because it was outside her legal obligations (or if she was, it was not the principal objection.).  This is demonstrated by the fact that she sought to avoid the difficulties by changing rosters.  Her fundamental objection was always that her religious beliefs obliged her not to carry out these duties.  Had she said that in principle she would do this work but was refusing because she was not prepared to be required to take on fresh responsibilities, this would have been a wholly different case.  

87.	Ms Mountfield submits that there was no, or certainly no sufficient, evidence to support the contention that it was her beliefs rather than her conduct which caused the council to take 

the actions they did.  She could not establish prima facie direct discrimination as required by the first stage of the Igen test.  

88.	We agree.  In truth, all the evidence supported the council’s view that if she had been willing to carry out the ceremony - even the limited administrative tasks of registering a ceremony which she was offered as a compromise - then no further action would be taken against her.  She would then have been doing what was required of her.  She could have kept her objection to same sex relationships, and there would have been no action taken against her merely because that was her view.  

89.	This is further supported by the fact that no action was taken against another employee who shared the same religious views but who accepted a different role which did not place her in this dilemma.  Had the council’s belief objection been to the belief itself, then logically she should have been disciplined anyway.  We can see no real evidence which begins to justify an inference that the claimant was subjected to disciplinary action because of her beliefs rather because she insisted on giving effect to those beliefs by refusing to participate in civil partnership work.

90.	Accordingly, we do not think that there is a proper basis for remitting this case on direct discrimination.  There was not a proper evidential basis on which a tribunal could properly have concluded that there was direct discrimination.  This part of the appeal therefore succeeds, and we substitute a finding that there was no direct discrimination.

Harassment.
91.	We turn to consider the allegations of harassment. The Tribunal deals with this relatively briefly. It is not necessary to set out any of the judgment on this aspect of the case. The Tribunal considered each of the allegations and sought to determine two matters. 

92.	The first was whether the alleged act had occurred; the second was whether the conduct was unwanted. So, for example, in relation to the breach of confidentiality and the failure to consider the claimant for the maternity leave position, the Tribunal concluded that this treatment constituted acts of harassment because they were unwanted and had it was not disputed that they had taken place. What is conspicuously lacking from the analysis is any assessment of why the conduct occurred. Mr Dingemans submits that it is possible to read the decision as a whole such that one can readily infer that the Tribunal is concluding that the reason for this treatment is the claimant’s religious beliefs. 

93.	We think that is an impossible step to take. As we have said, it is important that a tribunal sets out in some detail the evidence on which it relies to make a finding of discrimination. The inference appears to be that because the claimant is asserting a religious view and suffers unwanted conduct as a consequence, then that conduct must be deemed to be by reason of the religious view. That is not sustainable reasoning for reasons we have already spelt out. In our view the only proper inference from the evidence is that the council is not concerned with the reason why the claimant was refusing to carry out these duties; it is the fact that she was doing so which caused them to respond in the way they did.

94.	Accordingly, in our judgment, the finding on harassment cannot stand. For the reasons we have given with respect to direct discrimination, we do not think that there is any proper basis on which the Tribunal could have concluded that there was unlawful harassment on the grounds of religious belief.  The appeal on this ground is upheld, and we substitute a finding that there was no unlawful harassment.

Indirect discrimination.
95.	It is accepted in this case that the council’s requirement that all registrars perform civil partnership functions had the effect of placing persons of the claimant’s religion or belief at a particular disadvantage when compared with other persons, namely those who did not share her religious beliefs about same sex relationships. She was personally placed at a disadvantage because of the disciplinary action taken against her and the risk of loss of job as a disciplinary sanction. The only issue now in play is whether the council can show that the application of this provision was, to use the language of the Regulations, a proportionate means of achieving a legitimate aim.

96.	The Tribunal accepted that the aim was legitimate. They summarised it as being this:
“To provide an effective civil partnership arrangements’ service as an employer public authority which is wholly committed to the promotion of equal opportunities and to fight discrimination.”

97.	The council submit that this is not an entirely adequate statement of the aim. It was not disputed that an effective service could be provided even if the claimant did not carry out the civil partnership duties. However, part of the commitment to the promotion of equal opportunities and fighting discrimination is that employees should not be permitted to refuse to provide services to the community for discriminatory reasons.  In fact, Mr Dingemans accepted, as the Tribunal record, that the promotion of the rights of the gay community was a legitimate aim.

98.	Having accepted that the aim was a legitimate one, the issue which fell to be determined was whether it was a proportionate response to require the claimant to carry out these duties. The council’s submission before the Tribunal was that it necessarily follows that in order to achieve the aim, the council must forbid any registrar from choosing not to carry out duties for discriminatory reasons. The aim of combating discrimination is necessarily undermined if acts of discrimination by staff are knowingly permitted. 

99.	The Tribunal, however, rejected this analysis. They concluded that the service could be provided perfectly satisfactorily without the claimant having to conduct civil partnership duties (a point not disputed) and they continued as follows:
“The respondent decided that the service it provided was secular and that the rights of the lesbian, gay, bisexual and transsexual community must be protected. In so acting, the respondent took no notice of the rights of Ms Ladele by virtue of her orthodox Christian beliefs. The Tribunal were satisfied that the respondent placed a value on the rights of the first group which it did not afford to the protected section of the community of which Ms Ladene was a part. The respondent placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of Ms Ladele as one holding an orthodox Christian belief. The respondent showed no respect for Ms Ladele’s rights. Their action….was not a proportionate means of achieving a legitimate aim.”
		
100.	The council submits that this is an erroneous approach. The Tribunal failed to approach the question of proportionality within a structured framework. The question is whether what the council did was a proportionate means of achieving a legitimate aim. This has nothing to do with balancing the rights of one section of the community against another. If one applies the principles of proportionality in a proper way, requiring the staff to act in a non-discriminatory manner was entirely rationally connected with the legitimate objective. It was reasonably necessary to achieve that objective. The council were also entitled to take the view that it would be wrong to allow registrars to pick and choose whether or not to carry out their obligations, depending on their religious views, and it would send the wrong message to staff of the council about its commitment to equality. 

101.	Furthermore, it is material to note that there were other jobs which the claimant could fill, including possible jobs within the council itself, which would not give rise to this dilemma. This was not a fundamental undermining of her religious beliefs. It was merely denying her the right to remain in the particular post and put into practice one aspect of her belief, namely giving effect to her objection to same sex partnerships. 

102.	Liberty, whom we permitted to appear as interveners to make submissions on indirect discrimination, adopt a similar - indeed, stricter - line. The claimant was being required to carry out an important function of a public nature and her reason for non-performance involved discrimination on a protected ground, contrary to law. 

103.	They submit that the refusal to accommodate the claimant’s beliefs in these circumstances is necessarily justified.  All the other registrars were required to do this work and it would have been quite wrong for the council to make an exception on this ground.  It is irrelevant whether the employee’s wishes could in practice be accommodated without adversely affecting the service.  That might be highly relevant where an employee sought to manifest her beliefs in a non-discriminatory way, such as taking time off for religious worship.  Then the manifestation of belief ought if possible to be accommodated, unless to allow time off would disproportionately prejudice the running of the business.   But this is an entirely different case.

104.	Here, it would be wrong for the employers to accommodate the claimant and thereby lend support to discrimination which the law forbids. This is particularly so given that the council itself is under a legal duty to provide its services without discrimination on grounds of sexual orientation. Parliament has in certain areas permitted religious beliefs to take priority over the claims of those who seek not to be discriminated against on grounds of sexual orientation: see, for example, the discussion in R (On the Application of Amicus – MSF section) v Secretary of State for Trade & Industry [2004] IRLR 430. Such exceptions should be narrowly construed and no special exception has been carved out in relation to the provision of civil partnership duties. 

105.	It would be bizarre if the council could be under a duty to provide the relevant service without discrimination and yet could not require its own employees to act likewise. 

106.	Moreover, it is submitted that if the claimant were right, it could lead to situations which almost everyone would find wholly unacceptable.  For example, a racist who objected to performing mixed race marriages or Jewish marriages would have to be accommodated in similar circumstances. (Apparently there are some Christian churches in America which advocate white supremacism and anti-semitism). 

107.	This is not a case where there can be any doubt what the right answer must be. The council was not merely entitled but, in Liberty’s view, obliged to take the step it did and its stance was plainly justified.

108.	The claimant contends that the Tribunal’s reasoning, although succinct, was entirely justified. As the council conceded, the civil partnership requirements could have been provided perfectly satisfactorily without obliging the claimant to perform these duties.  That was what other authorities had sensitively done.  The Tribunal were therefore entirely right to say that the council had insisted on the claimant carrying out civil partnerships when it was not necessary to do so; nobody suffered whether the claimant carried out these duties or not because there were sufficient registrars to perform the service. The legislative objective here was providing for civil partnerships; that did not justify limiting this fundamental right to religious belief. 

109.	The Tribunal was entirely right to say that the issue involved balancing the rights of the competing parties. It was no answer to say that the claimant could hold onto her beliefs by giving up her job. It was appropriate to balance the religious beliefs of the claimant against the interests of the same sex community, and the Tribunal was fully entitled to find that the balance was wrongly struck in this case.  Had a proper respect been shown for the claimant’s beliefs, she would never have been designated a registrar for civil partnership duties.

Conclusions. 
110.	In our judgment, the Tribunal wrongly applied the proportionality test.   That is not to be determined by a vague attempt to balance irreconcilable positions.  The focus should be on whether the means adopted are a proportionate way of achieving a legitimate aim. As Pill LJ pointed out in Hardys and Hansons v Lax [2005] IRLR 726 para 33, this requires a careful and sophisticated analysis of the employer’s justification defence. The Tribunal did not apply that test.  

111.	In our judgment, if one applies the statutory test, the council was entitled to adopt the position it did.  Once it is accepted that the aim of providing the service on a non-discriminatory basis was legitimate -and in truth it was bound to be- then in our view it must follow that the council were entitled to require all registrars to perform the full range of services.  They were entitled in these circumstances to say that the claimant could not pick and choose what duties she would perform depending upon whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on grounds of sexual orientation.  That stance was inconsistent with the non-discriminatory objectives which the council thought it important to espouse both to their staff and the wider community.  It would necessarily undermine the council’s clear commitment to that objective if it were to connive in allowing the claimant to manifest her belief by refusing to do civil partnership duties.

112.	We do not for one moment doubt the sincerity of her belief, nor her claim that in all other ways she treats people the same regardless of their sexual orientation.  However, the issue is not, as the Tribunal found, a matter of giving equal respect to the religious rights of the claimant and the rights of the gay community.  It is whether, given the legitimate aim, the means adopted by the council to achieve that aim were proportional.   

113.	In any event, in our view giving equal respect in this context would require that the council should also discipline gay registrars who refused to marry, say, certain Christian evangelicals because the registrars objected to their hostility to civil partnerships.  The council submits that the evidence demonstrated that they would treat such persons the same way, although the Tribunal made no finding to that effect and Mr Dingemans casts some doubt upon whether this was established.  It seems to us, however, that this or something like it is the test for determining whether the two positions were equally respected, and there was no finding that the council would not have treated such persons in the same way.

114.	Liberty say that not only is the stance adopted by the council lawful, it was the only lawful position for them to adopt.  We do not have to decide that and we think it would be wrong to do so given that it is not an issue between the parties.    The council’s submission did not go that far. Furthermore, we have not heard full argument about it.

115.	Liberty’s submission in brief was that to allow some designated registrars the right to refuse to carry out the full range of duties would involve a form of segregation, with those participating in civil partnerships being subject to one set of rules (because limited with respect to those who would perform the ceremony) and those involved in traditional marriages being subject to another.  

116.	The point was put succinctly and powerfully by Ms Monaghan QC, counsel for Liberty, and we see the force of it.  However, we would be sorry if pragmatic ways of seeking to accommodate beliefs were impermissible, and it may that, for example, choosing not to designate those with strong religious objections would be a lawful way of reconciling conflicts in this highly sensitive area. We would certainly have thought it arguable that a council who then made all its designated officers available for civil partnership would be acting without discrimination in the provision of the civil partnership service.   

117.	Fundamental changes in social attitudes, particularly with respect to sexual orientation, are happening very fast and for some - and not only those with religious objections - they are genuinely perplexing. In that context there seems to us to be some virtue in taking a pragmatic line if it is lawful.  However, whether the council may have been entitled to avoid bringing this matter to a head by not designating the claimant, in our view they were not obliged to do so.    We think they were entitled not to agree to make an exception for the claimant.  They were not required to connive in what they perceived to be unacceptable discriminatory behaviour by relieving the claimant of these duties.  They were entitled to adopt as an objective an unambiguous commitment to the non-discriminatory provision of services by all staff who in the normal course of events, would be required to carry out those services. It would necessarily undermine that objective to make an exception for the claimant.  Accordingly, their refusal to accommodate the religious belief of the claimant did not in our judgment involve unlawful indirect discrimination.

The ECHR jurisprudence.
118.	We benefited from a very detailed analysis of the ECHR jurisprudence on discrimination produced by counsel for Liberty. Article 9(1) respects the right to freedom of thought, conscience and religion. Article 9(2) respects the freedom to manifest one’s religion 
or belief, but that manifestation is:
 “subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

119.	We do not think it necessary in this case to explore this jurisprudence in any detail. The only reason to do so would be if the protection afforded by Article 9 was inconsistent with the analysis we have adopted.  We are confident that it is not.  The ECHR has, in fact, adopted a very narrow protection indeed for employees who seek to rely on their Article 9 rights. 

120.	Cases such as Ahmad v UK [1982] 4 ECHR 126 and Stedman v UK [1997] 23 ECHR CD show that the act of an employer who refuses to accommodate an employee’s wish to have time off for religious worship does not even engage Article 9. In each case the Commission took the view that the reason for the conduct was the refusal to work the hours, rather than the religious belief as such. The rights under Article 9 were not subject to interference because the employee could resign and take up other employment.

121.	The limitations imposed on freedom of religion are particularly strong where a person has to carry out state functions. In Kalak v Turkey [1999] 27 ECHR the court found that the military judge’s Article 9 rights were not beached when he was compulsorily retired for reasons associated with his religion. He had adopted fundamentalist Muslim opinions inconsistent with his position as a judge. The court said this (para 27-28):
	“Article 9 does not protect every act motivated or inspired by a religion or belief.  Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account.
In choosing to pursue a military career, Kalak was accepting of his own accord a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of members of the Armed Forces limitations incapable of being imposed on civilians.”
In that case it was not the Muslim beliefs which created the problem - indeed, he was allowed, for example, to pray five times a day and to keep fasts - rather it was, as the court put it, “his conduct and attitude.”
	
122.	The Court of Appeal in Copsey v WB Devon Clays Ltd [2005] ICR 1789 analysed the ECHR jurisprudence in some detail and observed how limited the protection was. In Regina (SB) v Denbigh High School [2007] I AC100 the House of Lords referred to the Copsey analysis but stated that whatever criticisms there may be of the restrictive approach of the ECHR, there was a clear and consistent line of authority sustaining it.  As Lord Hoffmann pointed out in that case (para 50):
 “Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s choosing.”  

123.	We have no real doubt that in the light of this jurisprudence, there would be no breach of Article 9 in this case. The only conceivable argument, it seems to us, is that the claimant was not required to carry out these civil partnership duties when initially engaged in the office of registrar, but they were imposed upon her at a later date. This possible argument is supported by the decision of Rix LJ in the Copsey case.  We doubt, however, whether even this argument could succeed here because the range of duties appropriate for registrars had been extended by Parliament and the claimant was being required to carry out precisely the kind of tasks which those in her situation do.   

124.	In any event, we think that the argument is bound to fail where the nature of the accommodation which the worker seeks is permission to refuse to carry out duties because of hostility to giving effect to the legal rights of same sex couples.  

125.	Liberty point out that Article 17 of the ECHR would be engaged in these circumstances.  This states that: 
“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or their limitation to a greater extent than is provided for in the Convention.”		

126.	We see considerable force in the argument that the claimant’s refusal to give effect to same sex partnerships would involve a breach of this provision.  Furthermore, it is clear that religious rights must be exercised in a way which is compatible with the rights and interests of others: see, for example, Williamson v Secretary of State for Education [2005] 2 AC 246 in which the religious beliefs of parents that their children should, if necessary, be smacked at school had to give way to legislation that forbade this.  There is an analogy here; the right to manifest the religious belief must give way to the rights of same sex partners to have their partnership recognised by law.

127.	In our view, it necessarily follows that the manifestation of the belief must give way when it involves discriminating on grounds which Parliament has provided to be unlawful. A passage from the judgment of Munby J in R (E) v The Governing Body of JFS and Others [2008] EWHC 1535,1536 is apposite: 
“… it is important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. And invocation of religious belief does not necessarily provide a defence to what is otherwise a valid claim. Some cultural beliefs and practices are simply treated by the law as being beyond the pale.”

128.	Of course, compliance with Article 9 is not the end of the inquiry because the domestic law can give fuller protection than that afforded by the Article 9.  However, for the reasons we have given, we do not think that it does so in the circumstances of this case.

Disposal. 
129.	In our judgment, the appeal succeeds. The council were not taking disciplinary action against Ms Ladele for holding her religious beliefs; they did so because she was refusing to carry out civil partnership ceremonies and this involved discrimination on grounds of sexual orientation.  The council were entitled to take the view that they were not willing to connive in that practice by relieving Ms Ladele of these duties, notwithstanding that her refusal was the result of her strong and genuinely held Christian beliefs. The council were entitled to take the view that this would be inconsistent with their strong commitment to the principles of non-discrimination and would send the wrong message to staff and service users.

130.	 There were clearly some unsatisfactory features about the way the council handled this matter. The claimant’s beliefs were strong and genuine and not all of management treated them with the sensitivity which they might have done.  However, we are satisfied that the Tribunal erred in finding that any of the grounds of discrimination was made out.  In our judgment, there is no proper evidential basis on which a Tribunal properly directing itself in law could reach that conclusion.

131.	Accordingly, we substitute a finding that there has been no unlawful religious discrimination by the council in this case.