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A No-Win Situation for Public Officials with Faith Convictions
Published online by Cambridge University Press: 05 January 2010
Abstract
This article considers two recent high-profile employment cases to investigate the peculiar dilemma faced by certain public officials who are called upon to implement public policy in situations where their consciences are made uneasy due to their faith-based convictions. Such officials face, among other options, the dilemma of choosing between an appeal to rational objections, based on ‘public reasons’ that are non-religious in character, or citing their own faith-based conscientious objections. In McClintock v Department of Constitutional Affairs, by initially basing his objections on a form of public reason, McClintock arguably muddied the waters for his subsequent unsuccessful claim of religious discrimination. In Ladele v Islington Borough Council, however, the appeal to conscience alone also failed as religious convictions were ‘trumped’ by the superior claims of particular policy objectives. This article thus concludes that the ‘religious’ public official may, ultimately, have nowhere to turn except either to silence conscience and acquiesce or to exercise that ‘minimum’ employment right under ECHR case law – the right to resign.
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- Copyright © Ecclesiastical Law Society 2010
References
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29 Ibid, para 7.
30 Ibid, para 9.
31 He also claimed discrimination by way of harassment but, in the words of the EAT, this claim ‘went nowhere since there was no evidence that anything, even remotely relating to harassment, had occurred’ (ibid, para 23).
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43 It is perhaps worth noting that the example given by Rix LJ to support this statement was the ‘passive’ example of a Muslim or Jew adhering to a particular dietary law without the ‘need for request or explanation’. McClintock did make a request and the employer was entitled to an explanation: see McClintock, EAT 0223/07, para 46.
44 Ibid.
45 Ibid, para 45.
46 The EAT in McClintock considered this hypothetically only, having determined that the 2003 Regulations were not, in fact, engaged at all.
47 Set out above, pp 9–10.
48 This conclusion is surely contentious in the case of Ladele, where there appears to be strong evidence to support a direct discrimination claim, given the seemingly more favourable responses to objections (to Ladele) by gay staff than the responses given to Ladele's own religious objections; see M Rubenstein, ‘In the courts’, (2009) 186 Equal Opportunities Review 29–30.
49 This was clearly perceived in Ladele by an intervenor, ‘Liberty’, albeit that the intervention, specifically regarding the indirect discrimination claim, was in support of the stance taken by the employer.
50 McClintock, EAT 0223/07, para 51.
51 Ladele, EAT 0453/08, para 110.
52 McClintock, EAT 0223/07, para 52; Ladele, EAT 0453/08, paras 23 and 117.
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