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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ladele v London Borough of Islington  EWCA Civ 1357 (15 December 2009)
Cite as:  ICR 532,  WLR 955,  IRLR 211,  1 WLR 955,  PTSR 982,  EWCA Civ 1357
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ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
The Hon Mr Justice Elias, Mrs M McArthur BA FCIPD, Ms B Switzer
Appeal No UKEAT/0453/08/RN
BAILII:  UKEAT 0453_08_1912
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LADY JUSTICE SMITH
| LILLIAN LADELE
- and -
|THE LONDON BOROUGH OF ISLINGTON
Ms Helen Mountfield (instructed by London Borough of Islington (Legal Services)) for London Borough of Islington
Ms Karon Monaghan QC and Prof Aileen McColgan instructed by, and for, Liberty
Hearing dates : 2 & 3 November 2009
Crown Copyright ©
The Master of the Rolls:
The factual history
The procedural history
The 2003 Regulations
"For the purpose 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 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."
Thus, in subparagraphs (a) and (b), Regulation 3(1) covers, respectively, direct and indirect discrimination, thereby reflecting the Directive. Regulation 3(2) states that the comparison under regulation 3(1) must "be such that the relevant circumstances in the one case are the same, or not materially different, in the other".
"(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a transfer ;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment."
Regulation 6(3) makes it unlawful for any employer to subject any of his employees to harassment.
The ET's finding on direct discrimination
The contention that the direct discrimination claims be remitted to the ET
Conclusions on direct discrimination and harassment
Ms Ladele's claim of indirect discrimination
The Strasbourg jurisprudence on article 9 of the Convention
"The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law."
The effect of the 2007 Regulations
(1) For the purposes of these Regulations, a person ("A") discriminates against another ("B") if, on grounds of the sexual orientation of B ., A treats B less favourably than he treats or would treat others (in cases where there are no material differences in the 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 when compared to some or all others (where there are no material differences 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 are no material differences in the relevant circumstances), and
(d) which A cannot reasonably justify by reference to matters other than B's sexual orientation."
Thus, there are, in slightly different words, the familiar provisions for direct and indirect discrimination. Regulation 3(4) states that civil partnership is not materially different from marriage for these purposes.
"It is unlawful for a person ("A") concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate .
(a) by refusing to provide B with goods, facilities or services .."
Regulation 4(3) provides that Regulation 4(1) "does not apply in relation to the provision of services by a person exercising a public function", but this must be read in the light of regulation 8.
Lord Justice Dyson:
Lady Justice Smith: