Christian counsellor who would not help same sex couples was not discriminated against

McFarlane v Relate Avon Ltd [2009] UKEAT 0106_09_3011

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  • A christian counsellor who would not give an unequivocal commitment to counsel same-sex couples was dismissed fairly.
  • There was no direct discrimination as the dismissal related to a manifestation of the belief and not the belief itself.
  • Any indirect discrimination was justified as Relate aimed to operate without discriminating between service users. This needed staff to cooperate notwithstanding personal religious belief.
  • The EAT deprecated the use of 'loss of trust and confidence'by employers, a concept belonging to constructive, not actual dismissal. Employers should in such cases dismiss on conduct grounds or 'Some Other Substantial Reason'(SOSR).

For s4A(3) of the DDA to apply the employer must have known (or ought to have known) that the employee was disabled and that the disability would affect him in the manner described in section 4A(1) - DWP v Alam [2009] UKEAT 0242_09_0911
A discrimination case may not proceed on the mere possibility that evidence might emerge during cross examination - ABN Amro Management Services v Hogben [2009] UKEAT 0266_09_0111
In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202
In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202
It is possible to claim unfair dismissal abroad even if the workplace is registered outside the UK - Diggins v Condor Marine Crewing Services Ltd [2009] EWCA Civ 1133
Autoklenz 'Subcontractors' were employees - the contractual substitution clause was just 'window dressing' - Autoclenz Ltd v Belcher & Ors [2009] EWCA Civ 1046
Contract was ultra vires but employee still able to pursue unfair dimsissal claim under ERA 96 - Shrewsbury & Telford Hospital NHS Trust v Lairikyengbam [2009] UKEAT 0499_08_2108
Redundancies - ECJ rules that consultations do not need to begin until the parent company decides which subsidiary will be affected - Akavan Erityisalojen Keskusliitto AEK ry and Others v Fujitsu Siemens Computers Oy - ECJ [2009] Case C-44/08
ECJ rules holiday entitlement must not be lost through illness - Pereda v Madrid Movilidad SA - ECJ [2009] C-277/08
Costs follow lies (breaching confidentiality in a compromise agreement) - Dunedin Housing Association Ltd v. Donaldson - UKEAT [2009] 0014_09_0807
Pre-contractual negotiations can not be used as evidence for the meaning of a contract - Chartbrook Ltd v Persimmon Homes Ltd & Ors [2009] UKHL 38

The transcript of this case follows:-   McFarlane v Relate Avon Ltd [2009] UKEAT 0106_09_3011  (usually found at the Bailli or Employment Appeals websites)

Some recent employment cases:-
Under TUPE the obligation to inform always applies, even when no measures are contemplated relating to the transfer - Cable Realisations Ltd v GMB Northern [2009] UKEAT
The Court of Appeal rules on Harassment and 'Oppressive and Unacceptable' behaviour
Veakins v Kier Islington Ltd [2009] EWCA Civ 1288

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