CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 janvier 2013

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margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic }     FOURTH SECTION               CASE OF EWEIDA AND OTHERS v. THE UNITED KINGDOM   (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10)               JUDGMENT   STRASBOURG   15 January 2013   FINAL   27/05/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Eweida and Others v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   David Thór Björgvinsson, President,   Nicolas Bratza,   Lech Garlicki   Päivi Hirvelä,   Zdravka Kalaydjieva,   Nebojša Vučinić,   Vincent A. De Gaetano, judges,   and Lawrence Early, Section Registrar, Having deliberated in private on 4 September and 11 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in four applications (nos.   48420/10, 59842/10, 51671/10 and 36516/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four British nationals, Ms Nadia Eweida, Ms Shirley Chaplin, Ms Lillian Ladele and Mr Gary McFarlane (“the applicants”), on 10   August 2010, 29 September 2010, 3 September 2010 and 24 June 2010 respectively. 2.     The applicants were represented by Aughton Ainsworth, a firm of solicitors in Manchester, (Ms Eweida), Mr Paul Diamond, (Ms Chaplin and Mr McFarlane), and Ormerods, a firm of solicitors in Croydon, Surrey, (Ms   Ladele). The United Kingdom Government (“the Government”) were represented by their Agent, Ms Ahila Sornarajah. 3.     The applicants complained that domestic law failed adequately to protect their right to manifest their religion. Ms Eweida and Ms Chaplin complain specifically about restrictions placed by their employers on their wearing of a cross visibly around their necks. Ms Ladele and Mr McFarlane complained specifically about sanctions taken against them by their employers as a result of their concerns about performing services which they considered to condone homosexual union. Ms Eweida, Ms Chaplin and Mr McFarlane invoked Article 9 of the Convention, taken alone and in conjunction with Article 14, while Ms Ladele complained only under Article 14 taken in conjunction with Article 9. 4.     On 12 April 2011 the application of Ms Chaplin was joined to that of Ms Eweida and the application of Mr McFarlane was joined to that of Ms   Ladele. All four applications were communicated to the Government. The Court also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). At the date of adoption of the present judgment, it further decided to join all four applications. 5.     The following individuals and organisations were given leave by the President to intervene as third parties in the written procedure (Article   36   §   2 of the Convention and Rule 44 § 2): the Equality and Human Rights Commission; The National Secular Society; Dr Jan Camogursky and The Alliance Defense Fund; Bishop Michael Nazir-Ali; The Premier Christian Media Trust; the Bishops of Chester and Blackburn; Associazione Giuseppi Dossetti: i Valori; Observatory on Intolerance and Discrimination against Christians in Europe; Liberty; the Clapham Institute and KLM; the European Centre for Law and Justice; Lord Carey of Clifton; and the Fédération Internationale des ligues des Droits de l’Homme (FIDH, ICJ, ILGA-Europe). 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 4 September 2012 (Rule 59 § 3). There appeared before the Court:   (a)     for the Government Ms Ahila SORNARAJAH   Agent for the Government Mr James EADIE QC   Counsel Mr Dan SQUIRES   Counsel Ms Suzanne LEHRER   Adviser Mr Hilton LESLIE   Adviser Mr Wally FORD   Adviser (b)     for the first applicant Mr James DINGEMANS QC   Counsel Ms Sarah MOORE   Counsel Mr Thomas ELLIS   Solicitor Mr Gregor PUPPINCK   Adviser (c)     for the third applicant Ms Dinah ROSE QC     Counsel Mr Ben JAFFEY     Counsel Mr Chris McCRUDDEN   Counsel Mr Mark JONES     Adviser Mr Sam WEBSTER     Adviser (d)     for the second and fourth applicant s Mr Paul DIAMOND   Counsel Mr Paul COLEMAN   Counsel Mr Pasha HMELIK   Counsel Ms Andrea WILLIAMS   Adviser Mr Andrew MARSH   Adviser The Court heard addresses by Mr Eadie QC for the Government, Mr   Dingemans QC for Ms Eweida, Ms Rose QC for Ms Ladele and Mr   Diamond for Ms Chaplin and Mr McFarlane. I.     THE CIRCUMSTANCES OF THE CASE 7.     The first applicant, Ms Eweida, was born in 1951 and lives in Twickenham. The second applicant, Ms Chaplin, was born in 1955 and lives in Exeter. The third applicant, Ms Ladele, was born in 1960 and lives in London. The fourth applicant, Mr McFarlane, was born in 1961 and lives in Bristol. 8.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Ms Eweida 9.     The first applicant, who spent the first eighteen years of her life in Egypt, is a practising Coptic Christian. From 1999 she worked as a member of the check-in staff for British Airways Plc, a private company. 10.     British Airways required all their staff in contact with the public to wear a uniform. Until 2004 the uniform for women included a high-necked blouse. In 2004 British Airways introduced a new uniform, which included an open-necked blouse for women, to be worn with a cravat that could be tucked in or tied loosely at the neck. A wearer guide was produced, which set out detailed rules about every aspect of the uniform. It included the following passage, in a section entitled “Female Accessories”: “Any accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform. If however this is impossible to do given the nature of the item and the way it is to be worn, then approval is required through local management as to the suitability of the design to ensure compliance with the uniform standards, unless such approval is already contained in the uniform guidelines. ... NB No other items are acceptable to be worn with the uniform. You will be required to remove any item of jewellery that does not conform to the above regulations. ” 11.     When an employee reported for work wearing an item which did not comply with the uniform code, it was British Airways’ practice to ask the employee to remove the item in question or, if necessary, to return home to change clothes. The time spent by the employee in putting right the uniform would be deducted from his or her wages. Of the items of clothing considered by British Airways to be mandatory in certain religions and which could not be concealed under the uniform, authorisation was given to male Sikh employees to wear a dark blue or white turban and to display the Sikh bracelet in summer if they obtained authorisation to wear a short ‑ sleeved shirt. Female Muslim ground staff members were authorised to wear hijab (headscarves) in British Airways approved colours. 12.     Until 20 May 2006 Ms Eweida wore a cross at work concealed under her clothing. On 20 May 2006 she decided to start wearing the cross openly, as a sign of her commitment to her faith. When she arrived at work that day her manager asked her to remove the cross and chain or conceal them under the cravat. Ms Eweida initially refused, but eventually agreed to comply with the instruction after discussing the matter with a senior manager. On 7   August 2006 Ms Eweida again attended work with the cross visible and again agreed to comply with the uniform code only reluctantly, having been warned that if she refused she would be sent home unpaid. On 20   September 2006 she refused to conceal or remove the cross and was sent home without pay until such time as she chose to comply with her contractual obligation to follow the uniform code. On 23 October 2006 she was offered administrative work without customer contact, which would not have required her to wear a uniform, but she rejected this offer. 13.     In mid-October 2006 a number of newspaper articles appeared about Ms Eweida’s case which were critical of British Airways. On 24 November 2006 British Airways announced a review of its uniform policy as regards the wearing of visible religious symbols. Following consultation with staff members and trade union representatives, it was decided on 19 January 2007 to adopt a new policy. With effect from 1 February 2007, the display of religious and charity symbols was permitted where authorised. Certain symbols, such as the cross and the star of David, were given immediate authorisation. Ms Eweida returned to work on 3 February 2007, with permission to wear the cross in accordance with the new policy. However, British Airways refused to compensate her for the earnings lost during the period when she had chosen not to come to work. 14.     Ms Eweida lodged a claim with the Employment Tribunal on 15   December 2006, claiming, inter alia, damages for indirect discrimination contrary to regulation 3 of the Employment Equality (Religion and Belief) Regulations 2003 (“the 2003 Regulations”: see paragraph 41 below) and complaining also of a breach of her right to manifest her religion contrary to Article 9 of the Convention.   The Employment Tribunal rejected Ms   Eweida’s claim. It found that the visible wearing of a cross was not a mandatory requirement of the Christian faith but Ms Eweida’s personal choice. There was no evidence that any other employee, in a uniformed workforce numbering some 30,000, had ever made such a request or demand, much less refused to work if it was not met. It followed that the applicant had failed to establish that the uniform policy had put Christians generally at a disadvantage, as was necessary in order to establish a claim of indirect discrimination. 15.     Ms Eweida appealed to the Employment Appeal Tribunal, which dismissed the appeal on 20 November 2008. The Employment Appeal Tribunal held that it was not necessary for Ms Eweida to show that other Christians had complained about the uniform policy, since a person could be put at a particular disadvantage within the meaning of regulation 3(1) of the 2003 Regulations even if he or she complied, unwillingly, with the restrictions on visible religious symbols. Nevertheless, the Employment Appeal Tribunal concluded that the concept of indirect discrimination implied discrimination against a defined group and that the applicant had not established evidence of group disadvantage. 16.     Ms Eweida appealed to the Court of Appeal, which dismissed the appeal on 12 February 2010. It was argued on her behalf that the Employment Tribunal and Employment Appeal Tribunal had erred in law and that all that was needed to establish indirect discrimination was evidence of disadvantage to a single individual. The Court of Appeal rejected this argument, which it did not consider to be supported by the construction of the 2003 Regulations. It endorsed the approach of the Employment Appeal Tribunal, when it held that: “... in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group.” Moreover, even if Ms Eweida’s legal argument were correct, and indirect discrimination could be equated with disadvantage to a single individual arising out of her wish to manifest her faith in a particular way, the Employment Tribunal’s findings of fact showed the rule to have been a proportionate means of achieving a legitimate aim. For some seven years no one, including Ms Eweida, had complained about the rule and once the issue was raised it was conscientiously addressed. In the interim, British Airways had offered to move the applicant without loss of pay to work involving no public contact, but the applicant had chosen to reject this offer and instead to stay away from work and claim her pay as compensation. In addition, the Court of Appeal did not consider that this Court’s case-law under Article 9 of the Convention would assist Ms Eweida. It referred to the judgment of the House of Lords in R (SB) v Governors of Denbigh High School [2006] UKHL 15, where Lord Bingham analysed the case-law of the Court and Commission and concluded: “The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience”. 17.     On 26 May 2010 the Supreme Court refused Ms Eweida leave to appeal. B.     Ms Chaplin 18.     The second applicant is also a practising Christian. She has worn a cross visibly on a chain around her neck since her confirmation in 1971, as an expression of her belief. She believes that to remove the cross would be a violation of her faith. 19.     Ms Chaplin qualified as a nurse in 1981 and was employed by the Royal Devon and Exeter NHS Foundation Trust, a State hospital, from April 1989 to July 2010, with an exceptional employment history. At the time of the events in question she worked on a geriatric ward. The hospital had a uniform policy, based on guidance from the Department of Health. The hospital’s uniform policy provided in paragraph 5.1.5 that “If worn, jewellery must be discreet” and in paragraph 5.3.6:   “5.3.6     To minimise the risk of cross infection will be [sic] keep jewellery to a minimum (see 5.1.11). That is: One plain smooth ring which will not hinder hand hygiene, One pair of plain discreet earrings. No necklaces will be worn to reduce the risk of injury when handling patients. Facial piercing if present should be removed or covered.” Paragraph 5.1.11 provided: “Any member of staff who wishes to wear particular types of clothes or jewellery for religious or cultural reasons must raise this with their line manager who will not unreasonably withhold approval.” There was evidence before the Employment Tribunal that, on health and safety grounds, another Christian nurse had been requested to remove a cross and chain and two Sikh nurses had been informed that they could not wear a bangle or kirpan, and that they had complied with these instructions. Two female Muslim doctors were given permission to wear close-fitting “sports” hijab, resembling a balaclava helmet. 20.     In June 2007 new uniforms were introduced at the hospital, which for the first time included a V-necked tunic for nurses. In June 2009 Ms   Chaplin’s manager requested her to remove her “necklace”. Ms Chaplin insisted that the cross was a religious symbol and sought approval to wear it. This was refused, on the ground that the chain and cross might cause injury if an elderly patient pulled on it. Ms Chaplin then proposed wearing the cross on a chain secured with magnetic catches, which would immediately break apart if pulled by a patient. However, the health authority rejected this on the ground that the cross itself would still create a risk to health and safety if it were able to swing free; for example, it could come into contact with open wounds. Finally, it was suggested that she could secure her cross and chain to the lanyard which held her identity badge. All staff were required to wear an identity badge clipped to a pocket or on a lanyard. However, they were also required to remove the badge and lanyard when performing close clinical duties and, for this reason, the applicant rejected this suggestion also. In November 2009 Ms Chaplin was moved to a non-nursing temporary position which ceased to exist in July   2010. 21.     She applied to the Employment Tribunal in November 2009, complaining of both direct and indirect discrimination on religious grounds. In its judgment of 21 May 2010, the Employment Tribunal held that there was no direct discrimination since the hospital’s stance was based on health and safety rather than religious grounds. As regards the complaint of indirect discrimination, it held that there was no evidence that “persons”, other than the applicant, had been put at particular disadvantage. Moreover, the hospital’s response to Ms Chaplin’s request to wear the crucifix visibly had been proportionate. 22.     The applicant was advised that, in the light of the Court of Appeal’s judgment in the Ms Eweida’s case, an appeal on points of law to the Employment Appeal Tribunal would have no prospect of success. C.     Ms Ladele 23.     The third applicant is a Christian. She holds the view that marriage is the union of one man and one woman for life, and sincerely believes that same-sex civil partnerships are contrary to God’s law. 24.     Ms Ladele was employed by the London Borough of Islington, a local public authority, from 1992. Islington had a “Dignity for All” equality and diversity policy, which stated inter alia : “Islington is proud of its diversity and the council will challenge discrimination in all its forms. ‘Dignity for all’ should be the experience of Islington staff, residents and service users, regardless of the age, gender, disability, faith, race, sexuality, nationality, income or health status. ... The council will promote community cohesion and equality for all groups but will especially target discrimination based on age, disability, gender, race, religion and sexuality. ... In general, Islington will:   (a) Promote community cohesion by promoting shared community values and understanding, underpinned by equality, respect and dignity for all. ... It is the council’s policy that everyone should be treated fairly and without discrimination. Islington aims to ensure that: Staff experience fairness and equity of treatment in the workplace Customers receive fair and equal access to council services Staff and customers are treated with dignity and respect The council will actively remove discriminatory barriers that can prevent people from obtaining the employment opportunities and services to which they are entitled. The council will not tolerate processes, attitudes and behaviour that amount to discrimination, including harassment, victimisation and bullying through prejudice, ignorance, thoughtlessness and stereotyping. ... 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.” 25.     In 2002 Ms Ladele became a registrar of births, deaths and marriages. Although she was paid by the local authority and had a duty to abide by its policies, she was not employed by it but instead held office under the aegis of the Registrar General. The Civil Partnership Act 2004 came into force in the United Kingdom on 5 December 2005. The Act provided for the legal registration of civil partnerships between two people of the same sex, and accorded to them rights and obligations equivalent to those of a married couple. In December 2005 Islington decided to designate all existing registrars of births, deaths and marriages as civil partnership registrars. It was not required to do this; the legislation simply required it to ensure that there was a sufficient number of civil partnership registrars for the area to carry out that function. Some other United Kingdom local authorities took a different approach, and allowed registrars with a sincerely held religious objection to the formation of civil partnerships to opt out of designation as civil partnership registrars. 26.     Initially, Ms Ladele was permitted to make informal arrangements with colleagues to exchange work so that she did not have to conduct civil partnership ceremonies. In March 2006, however, two colleagues complained that her refusal to carry out such duties was discriminatory. In a letter dated 1 April 2006 Ms Ladele was informed that, in the view of the local authority, refusing to conduct civil partnerships could put her in breach of the Code of Conduct and the equality policy. She was requested to confirm in writing that she would henceforth officiate at civil partnership ceremonies. The third applicant refused to agree, and requested that the local authority make arrangements to accommodate her beliefs. By May 2007 the atmosphere in the office had deteriorated. Ms Ladele’s refusal to carry out civil partnerships was causing rota difficulties and putting a burden on others and there had been complaints from homosexual colleagues that they felt victimised. In May 2007 the local authority commenced a preliminary investigation, which concluded in July 2007 with a recommendation that a formal disciplinary complaint be brought against Ms Ladele that, by refusing to carry out civil partnerships on the ground of the sexual orientation of the parties, she had failed to comply with the local authority’s Code of Conduct and equality and diversity policy. A disciplinary hearing took place on 16 August 2007. Following the hearing, Ms Ladele was asked to sign a new job description requiring her to carry out straightforward signings of the civil partnership register and administrative work in connection with civil partnerships, but with no requirement to conduct ceremonies. 27.     Ms Ladele made an application to the Employment Tribunal, complaining of direct and indirect discrimination on grounds of religion or belief and harassment. On 1 December 2007 the Statistics and Registration Act 2007 came into force and, instead of remaining an office holder employed by the Registrar General, Ms Ladele became an employee of the local authority, which now had the power to dismiss her. It was advanced before the Employment Tribunal that if the applicant lost the proceedings, it was likely that she would be dismissed. 28.     On 3 July 2008, the Tribunal upheld the complaints of direct and indirect religious discrimination, and harassment, holding that the local authority had “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 local authority appealed to the Employment Appeal Tribunal, which on 19   December 2008 reversed the decision of the Employment Tribunal. It held that the local authority’s treatment of Ms Ladele had been a proportionate means of achieving a legitimate aim, namely providing the registrar service on a non-discriminatory basis. 29.     The decision of the Employment Appeal Tribunal was appealed to the Court of Appeal, which on 15 December 2009 upheld the Employment Appeal Tribunal’s conclusions. It stated, at paragraph 52: “...the fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.” The Court of Appeal concluded that Article 9 of the Convention and the Court’s case-law supported the view that Ms Ladele’s desire to have her religious views respected should not be allowed “...to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community.” It further noted that from the time the 2007 Regulations (see paragraph 42 below) came into force, once Ms Ladele was designated a Civil Partnership Registrar, Islington was not merely entitled, but obliged, to require her to perform civil partnerships. 30.     The applicant’s application for leave to appeal to the Supreme Court was refused on 4 March 2010. D.     Mr McFarlane 31.     The fourth applicant is a practising Christian, and was formerly an elder of a large multicultural church in Bristol. He holds a deep and genuine belief that the Bible states that homosexual activity is sinful and that he should do nothing which directly endorses such activity. 32.     Relate Avon Limited (“Relate”) is part of the Relate Federation, a national private organisation which provides a confidential sex therapy and relationship counselling service. Relate and its counsellors are members of the British Association for Sexual and Relationship Therapy (BASRT). That Association has a Code of Ethics and Principles of Good Practice which Relate and its counsellors abide by. Paragraphs 18 and 19 of the Code provide as follows:   “ Recognising the right to self-determination, for example :   18.     Respecting the autonomy and ultimate right to self-determination of clients and of others with whom clients may be involved. It is not appropriate for the therapist to impose a particular set of standards, values or ideals upon clients. The   therapist must recognise and work in ways that respect the value and dignity of clients (and colleagues) with due regard to issues such as religion, race, gender, age, beliefs, sexual orientation and disability.   Awareness of one’s own prejudices, for example :   19.     The therapist must be aware of his or her own prejudices and avoid discrimination, for example on grounds of religion, race, gender, age, beliefs, sexual orientation, disability. The therapist has a responsibility to be aware of his or her own issues of prejudice and stereotyping and particularly to consider ways in which this may be affecting the therapeutic relationship.” Relate also has an Equal Opportunities Policy which emphasises a positive duty to achieve equality. Part of it reads: “Relate Avon is committed to ensuring that no person – trustees, staff, volunteers, counsellors and clients, receives less favourable treatment on the basis of personal or group characteristics, such as race, colour, age, culture, medical condition, sexual orientation, marital status, disability [or] socio-economic grouping. Relate Avon is not only committed to the letter of the law, but also to a positive policy that will achieve the objective of ensuring equality of opportunity for all those who work at he Centre (whatever their capacity), and all our clients.” 33.     Mr McFarlane worked for Relate as a counsellor from May 2003 until March 2008. He initially had some concerns about providing counselling services to same-sex couples, but following discussions with his supervisor, he accepted that simply counselling a homosexual couple did not involve endorsement of such a relationship and he was therefore prepared to continue. He subsequently provided counselling services to two lesbian couples without any problem, although in neither case did any purely sexual issues arise. 34.     In 2007 Mr McFarlane commenced Relate’s post-graduate diploma in psycho-sexual therapy. By the autumn of that year there was a perception within Relate that he was unwilling to work on sexual issues with homosexual couples. In response to these concerns, Relate’s General Manager, a Mr B, met with Mr McFarlane in October 2007. The applicant confirmed he had difficulty in reconciling working with couples on same ‑ sex sexual practices and his duty to follow the teaching of the Bible. Mr   B expressed concern that it would not be possible to filter clients, to prevent Mr McFarlane from having to provide psycho-sexual therapy to lesbian, gay or bisexual couples. 35.     On 5 December 2007 Mr B received a letter from other therapists expressing concerns that an unnamed counsellor was unwilling, on religious grounds, to work with gay, lesbian and bi-sexual clients. On 12 December 2007 Mr B wrote to Mr McFarlane stating that he understood that he had refused to work with same-sex couples on certain issues, and that he feared that this was discriminatory and contrary to Relate’s Equal Opportunities Policies. He asked for written confirmation by 19 December 2007 that Mr   McFarlane would continue to counsel same-sex couples in relationship counselling and psycho-sexual therapy, failing which he threatened disciplinary action. On 2 January 2008 Mr McFarlane responded by confirming that he had no reservations about counselling same-sex couples. His views on providing psycho-sexual therapy to same-sex couples were still evolving, since he had not yet been called upon to do this type of work. Mr B interpreted this as a refusal by Mr McFarlane to confirm that he would carry out psycho-sexual therapy work with same-sex couples and he therefore suspended him, pending a disciplinary investigation. At an investigatory meeting on 7 January 2008 the applicant acknowledged that there was a conflict between his religious beliefs and psycho-sexual therapy with same-sex couples, but said that if he were asked to do such work, then he would do so and if any problems arose then he would speak to his supervisor. Mr B understood by this that Mr McFarlane undertook to comply with Relate’s policies, and he therefore halted the disciplinary investigation. 36.     Following a telephone conversation with the fourth applicant, his supervisor contacted Mr B to express deep concern. She considered that Mr   McFarlane was either confused over the issue of same-sex psycho- sexual therapy or was being dishonest. When these concerns were put to him, Mr McFarlane stated that his views had not changed since the earlier discussion and that any issue would be addressed as it arose. He was called to a further disciplinary meeting on 17 March 2008, at which he was asked whether he had changed his mind, but he simply replied that he had nothing further to add to what he had said on 7 January 2008. 37.     On 18 March 2008 Mr B dismissed Mr McFarlane summarily for gross misconduct, having concluded that the applicant had said he would comply with Relate’s policies and provide sexual counselling to same-sex couples without having any intention of doing so. He could therefore not be trusted to perform his role in compliance with the Equal Opportunities Policies. An appeal meeting took place on 28 April. The appeal was rejected on the basis that Mr B’s lack of trust in Mr McFarlane to comply with the relevant policies was justified. 38.     Mr McFarlane lodged a claim with the Employment Tribunal, claiming, inter alia, direct and indirect discrimination, unfair dismissal, and wrongful dismissal. The Tribunal pronounced its judgment on 5 January 2009. It found that Mr McFarlane had not suffered direct discrimination contrary to Regulation 3(1)(a) of the 2003 Regulations (see paragraph 41 below). He had not been dismissed because of his faith, but because it was believed that he would not comply with the policies which reflected Relate’s ethos. With regard to the claim of indirect discrimination under Regulation 3(1)(b), the Tribunal found that Relate’s requirement that its counsellors comply with its Equal Opportunities Policy would put an individual who shared Mr McFarlane’s religious beliefs at a disadvantage. However, the aim of the requirement was the provision of a full range of counselling services to all sections of the community, regardless of sexual orientation, which was legitimate. Relate’s commitment to providing non-discriminatory services was fundamental to its work and it was entitled to require an unequivocal assurance from Mr McFarlane that he would provide the full range of counselling services to the full range of clients without reservation. He had failed to give such an assurance. Filtration of clients, although it might work to a limited extent, would not protect clients from potential rejection by Mr McFarlane, however tactfully he might deal with the issue. It followed that his dismissal had been a proportionate means of achieving a legitimate aim. The discrimination claim, therefore, failed. Finally, the Tribunal rejected the claim of unfair dismissal, finding that Relate had genuinely and reasonably lost confidence in Mr McFarlane to the extent that it could not be sure that, if presented with same-sex sexual issues in the course of counselling a same-sex couple, he would provide without restraint or reservation the counselling which the couple required because of the constraints imposed on him by his genuinely held religious beliefs. 39.     Mr McFarlane appealed to the Employment Appeal Tribunal against the Tribunal’s findings in relation to direct and indirect discrimination and unfair dismissal. On 30 November 2009 the Employment Appeal Tribunal held that the Tribunal had been correct to dismiss the claims. It rejected Mr   McFarlane’s argument that it was not legitimate to distinguish between objecting to a religious belief and objecting to a particular act which manifested that belief, and held that such an approach was compatible with Article 9 of the Convention. It noted Relate’s arguments that the compromise proposed by Mr McFarlane would be unacceptable as a matter of principle because it ran “entirely contrary to the ethos of the organisation to accept a situation in which a counsellor could decline to deal with particular clients because he disapproved of their conduct”, and that it was not practicable to operate a system under which a counsellor could withdraw from counselling same-sex couples if circumstances arose where he believed that he would be endorsing sexual activity on their part. Relate was entitled to refuse to accommodate views which contradicted its fundamental declared principles. In such circumstances, arguments concerning the practicability of accommodating the applicant’s views were out of place. 40.     Mr McFarlane applied to the Court of Appeal for permission to appeal against the decision of the Employment Appeal Tribunal. On 20   January 2010 the Court of Appeal refused the application on the basis that there was no realistic prospect of the appeal succeeding in the light of the Court of Appeal judgment of December 2009 in Ladele . Following the refusal by the Supreme Court to allow leave to appeal in Ladele , Mr   McFarlane renewed his application for permission to appeal. After a hearing, that application was again refused on 29 April 2010, on the basis that the present case could not sensibly be distinguished from Ladele. II.     RELEVANT DOMESTIC LAW 41.     Regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003 provides: “ 3.     Discrimination on grounds of religion or belief (1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if – .... (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 persons of the same religion or belief as 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.” Regulation 2(1) provides that “religion” means any religion and “belief” means any religious or philosophical belief. 42.     Regulation 3 of the Equality Act (Sexual Orientation) Regulations 2007 provides: “ 3.     Discrimination on grounds of sexual orientation (1) For the purposes of these Regulations, a person (‘A’) discriminates against another (‘B’) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances). .... (3) For the purposes of these Regulations, a person (‘A’) discriminates against another (‘B’) if A applies to B a provision, criterion or practice – (a) which he applies or would apply equally to persons not of B’s sexual orientation, (b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances), (c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and (d) which A cannot reasonably justify by reference to matters other than B’s sexual orientation.” In connection with the provision of goods, services and facilities, Regulation 4 provides: “(1)   It is unlawful for a person (‘A’) conce