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Discrimination can be a matter of balance

The Dominion Post 31 January 2009

Since the early 1970s we have had legislation in New Zealand to protect people from discrimination.

The Human Rights Act 1993 prohibits discrimination on a wide range of grounds including race, colour, ethnic or national origins. It also prevents discrimination on the grounds of sexual orientation, age, religious and ethical belief and disability.

In an employment context there can be difficulties balancing the right of an employer to manage a business on the one hand and observance of human rights considerations on the other. There have been a number of fascinating cases in the United Kingdom.

Lillian Ladele said she was a strongly committed Christian who was employed in the London Borough of Islington from 1992. She was the registrar of births, deaths and marriages and was obliged to carry out the policy of the Islington Borough. She had responsibilities with regard to traditional marriages.

With the passing of legislation providing for civil partnerships for same-sex couples, Ms Ladele took a strong stance. She considered such relationships to be sinful. However, she was nevertheless designated a civil partnership registrar along with other relevant staff.

The council offered to limit her role in civil partnership ceremonies by confining her obligations to a simple signing process but she rejected that.

The council threatened her with disciplinary proceedings, saying that if she failed to treat people fairly and equally regardless of sexual orientation she could be guilty of gross misconduct.

Ms Ladele claimed that she was being discriminated against when she was required to undertake civil partnership duties because of her religious beliefs. The employer subjected Ms Ladele to a disciplinary investigation on the belief she was breaching the law by discriminating against same-sex couples who want a civil partnership. The registrar won her case before the Employment Tribunal but the council appealed and succeeded.

Essentially, the appeal tribunal said that the council was 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 the grounds of sexual orientation. We are told the Christian registrar is going to appeal further.

There was also the case of a happily married father driven out of his job by colleagues' gay taunts.

Stephen English was a 56-year-old heterosexual repeatedly called a faggot by workmates because he lived in Brighton and they found out he was educated at a boarding school.

The case went to the Court of Appeal in England. His colleagues knew that he was not gay. Despite that, because of his background, they taunted him, sending an internal company memo saying that he had worn "skin-tight Lycra cycling shorts" to Brighton's Gay Pride Parade.

Mr English resigned because of the abuse. When his case was heard the tribunal rejected it because he was not gay.

The Court of Appeal said that it was irrelevant whether he was gay or not. It was also irrelevant that his colleagues knew him not to be gay.

The court said that the mockery created a degrading and hostile working environment, and it did so on the grounds of sexual orientation.

New Zealand is no stranger to such cases. In 2004, PMP Print sought to introduce a new timekeeping mechanism which utilised the scanning of fingerprints. David Barnes took exception to this, objecting on religious grounds that his fingerprint was his property and that taking a fingerprint would result in his being stamped with the Mark of the Beast, as is noted in the Bible, Revelation 13:16 and 20:4. The authority concluded Mr Barnes could not hold such a stringent belief as he agreed he would comply with a police requirement for a fingerprint to be taken, if required.

In a multi-cultural society, respect for others' religious beliefs is to be expected. Employers are under a duty to accommodate the practices of their employees' religious beliefs as long as these do not unreasonably disrupt the employer's activities.

While this may not have been litigated in New Zealand, other jurisdictions provide guidance as to the sorts of practices which fall into this category. For example, where an employee's beliefs prohibit the times and/or days on which they can work, the employer's ability to continue the day-to-day operation of the business will be taken into account to assess reasonableness.

Similarly, employer dress codes must be adhered to in some instances despite the barriers this may pose to some religions. In one English case a Rastafarian was refused a job as a driver because the employer had a policy of requiring short hair and the man refused to cut off his dreadlocks.

The determination of reasonable accommodation often will also fall under other considerations such as safety. The Supreme Court of Canada excluded the duty to accommodate the religious practices of an employee where the employee, a Sikh, was dismissed after refusing to wear a safety helmet because it was contrary to his religious beliefs.

Wearing a hard hat was a bona fide occupational requirement of the position held by the employee. Such safety concerns must be paramount in such a situation. The right to insist on tight fits between safety masks and faces can require employees to be clean shaven, and prohibiting lose clothing near moving machinery can create limiting dress codes.

The issues covered by the Human Rights Act often raise issues that people feel extremely strongly about. The balancing exercise involved with religious beliefs and employment practices is one of reasonable accommodation. Cases from Britain such as that of Lillian Ladele provide helpful guidance.

The employee's duty to comply with an employer's reasonable and lawful instructions may thus be seen not to be overridden by religious beliefs as long as the employer can show that accommodating the belief would unreasonably disrupt the employer's activities.

Peter Cullen is a partner at Cullen - the Employment Law Firm

Email: peter@cullenlaw.co.nz

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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