Is it acceptable to discipline an employee that refuses to serve a guest because they don't approve of their sexuality? Stephen Levinson reports
A hotel banqueting manager refuses a booking for a reception celebrating a civil partnership. As a devout Christian they do not want to have any part in encouraging a same-sex union. Management disciplines them as their job is to secure business for the hotel.
The law The Equality Act 2010 prohibits discrimination in employment on the grounds of religion. The same act prohibits any form of discrimination in employment on the grounds of marriage or civil partnership. Article 9 of the European Convention of Human Rights includes protection of the freedom to hold religious beliefs.
Although this means everyone is free to think what they like, if someone manifests their religion by acts that affect others the right may be limited by laws in the interests of public safety, protecting public order, health or for the protection of the rights of others.
Expert advice The banqueting manager may argue they have suffered a detriment because of their religious views. The hotel wants to secure business and will usually have an equality policy requiring its employees not to discriminate on any of the grounds prohibited by the Equality Act.
If the employee is dismissed by the hotel, they might bring a tribunal case arguing that they have been unfairly dismissed and also discriminated against because of their religious views under the domestic law in the Equality Act and that their right to manifest religion under Article 9 has been infringed.
They may rely on the recent British Airways case where an employee won the right to wear a cross with her uniform. Even if not dismissed they may claim to have suffered a detriment for their religious views.
Before any disciplinary action is taken, the hotel should attempt to consult with the employee and explain why they should not have refused the booking. It may be possible to resolve matters if there is another manager who could deal with the event and this might be the ‘quietest' way to avoid conflict, but some will find this suggestion offensive because they believe that such discrimination should not be tolerated. This may include other employees, particularly if they are affected by this action.
If counselling does not work the hotel has to follow its disciplinary procedures strictly and also be sure that it is applying it consistently with any similar issues in the past. One of the reasons British Airways ran into difficulties in the European Court of Human Rights was because it had allowed other religious adherents to wear turbans and hijabs yet banned the cross.
Beware A tribunal dealing with this case may well find Article 9 is engaged if it believes the religious objection is genuine but it will then balance these views against the objectives of the hotel and determine whether the decision to discipline was proportionate, appropriate and necessary in the circumstances of the case.
The fairness issue in the unfair dismissal claim will be dealt with in the usual way taking all attempts to resolve matters into account.
â- Such information ought to be part of training and records kept that this has been done.
â- The policy of the business should be provided in writing. It should include a statement that services of the business are to be provided in accordance with its equalities policy, which should set out what is included.
â- In defending a case it will be easier to win if the reason was to uphold an equalities policy rather than secure new business. Commercial objectives are acceptable but not specifically referred to in Article 9, whereas the rights of others are.
Contact Stephen Levinson is a partner at RadcliffesLeBrasseur