Ask Auntie – What to do if you have two employees with clashing protected characteristics

Dear Auntie

I have two employees whose discrimination rights seem to clash and I don’t know whose rights have priority. One is a post-operative transsexual who has become a woman, who we now know as Kate. The other, Pippa (who is Kate’s manager), is a very devout Christian who thinks that this is “wrong”, and refuses to acknowledge that Kate is now a woman.

Since we have a policy of being an equal opportunities employer, we have tried to facilitate and support Kate’s transition as much as possible. However, this has particularly become a problem in relation to Kate’s management, as Pippa is refusing to be Kate’s line-manager. Pippa has been told that she must comply with the Company’s equal opportunities policy and that she must continue to be Kate’s line manager. Pippa has lodged a grievance saying that she is being discriminated against on the ground of her religion by being forced to manage Kate. Kate has lodged a grievance saying that she is being discriminated against because of her gender reassignment because Pippa is refusing to manage her.What can I do? I feel as though I am in a very difficult position!

Kind regards

Betwyn Rockandahard-Place
(HR Manager)

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Betwyn, we can sympathise with you, as this seems to be a very complex problem! There are two protected characteristics involved here – religion and belief, and gender reassignment. Since both seem to be in direct contention with one another, it is difficult to know which to prefer. A number of cases have been heard recently around this topic and the current leading case is Eweida & Others v United Kingdom (2013) which concerned a number of disputes.

Two in particular are relevant here:

1.  the first involved a registrar for civil marriages who refused to conduct civil partnership ceremonies because of her strong Christian belief that homosexual relationships are wrong. Her employer offered to accommodate her belief to the extent that she would only have to conduct administrative tasks in relation to civil partnerships and not the ceremonies themselves. However, she lodged a discrimination claim.

2.  the other concerned a Relate counsellor who was dismissed for non-compliance with an equal opportunities policy of providing sexual counselling to same-sex couples.

In both cases, the European Court of Justice upheld the employer’s decision and decided there had been no discrimination. The ECJ commented that “regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and the community as a whole”.

Two recent UK cases outside the employment context are also of interest, Preddy v Bull (2012) and Black and Morgan v Wilkinson (2013), which both concerned hotel / bed and breakfasts turning away homosexual couples on the ground that they were not married by Christian hotel owners (at the time same-sex couples could not marry). In both cases the Court of Appeal found for the couples who had been turned away on the ground that this was discriminatory. Although the B&B owners were entitled to show and practice their religious beliefs, this had to be restricted where “necessary in a democratic society”. Both of these cases are due to be heard by the Supreme Court shortly, so we will await the outcome of the appeals with interest!

As such, it seems that disciplining and / or dismissing Pippa is likely to be justified in order to ensure that the Company’s equal opportunities policy is complied with, provided that you give sufficient consideration to attempting to strike a balance between both parties. This is difficult to do without the risk of a discrimination claim.

Our suggestions would be as follows:

• listen to both Kate and Pippa sensitively during the grievance processes;
• consider instigating a formal disciplinary process against Pippa in relation to her non-compliance with the Company’s equal opportunities policy, and allow her the opportunity to reconsider her position;
• offer Pippa the opportunity to undertake equal opportunities training;
• consider whether there is a compromise solution that can be reached which enables both Kate and Pippa to continue without a problem, for example moving Pippa to another role within the organisation away from Kate. There is a higher risk if you move Kate, or implement any step which would disadvantage Kate, as this move would be linked to her protected characteristic. As such moving Kate might give rise to a discrimination claim which would be hard to defend. A change for Pippa on the other hand, could be more easily justified as it is connected non-adherence with a policy, rather than because of her religion per-se; 
• if Pippa still refuses to comply with the policy you may need to commence a formal dismissal process on the grounds that she is refusing to comply with your equal opportunities policy. If you do not take action in relation to Pippa, it seems that there is a risk of claims from Kate; and
• ensure that you follow correct procedures throughout as this is difficult area which might give rise to claims, however sensitively you attempt to deal with the issue!