Will not supporting gay marriage get you sacked?

Joe O’Donnell is a writer at Incomes Data Services (IDS) and is writing this in a personal capacity.

The Telegraph recently published an article entitled ‘Teachers “face sack” for refusing to endorse gay marriage’. This hyperbolic report uses Aidan O’Neill QC’s advice to the Coalition for Marriage  to argue against marriage equality in the UK.  But how well do The Telegraph’s employment-related claims stand up to examination?

The headline statement that teachers face the sack for refusing to endorse gay marriage would, if true, be cause for concern. However, this assertion is not repeated within the article. The text of the article instead warns that ‘schools will be within their statutory rights to dismiss staff that wilfully fail to use stories or textbooks promoting same-sex weddings’.

Where to start tackling what is wrong with that sentence? Maybe the assumption that textbooks which include characters in a gay marriage are ‘promoting’ same-sex weddings – would a story featuring a girl and her dog automatically ‘promote’ pet ownership regardless of the story’s content? It’s arguable that gay representation in textbooks could help reduce the endemic homophobic bullying and language in schools.

The article later clarifies that Aidan O’Neill’s advice is based on the fictional situation of a teacher refusing to stage a play based on a book about a gay marriage.   According to The Telegraph, O’Neill argues that ‘any refusal to comply would be “grounds for her dismissal from employment’’ because of a legal ruling that religious belief cannot be used by employees “to demand changes in their conditions of their employment’’.  This is presumably a reference to the Court of Appeal’s decision in Ladele v London Borough of Islington (reported in IDS Employment Law Brief 893).

In that case, the Court of Appeal held that L, a Christian registrar, was not discriminated against on the ground of her religion when she was dismissed by the Council for refusing to carry out civil partnership ceremonies in breach of its equal opportunities policy.

Her direct discrimination claim failed as there was no evidence on which the tribunal could find that L’s religious belief was the reason why the Council had dismissed her. L’s indirect discrimination also failed – L was employed by a public authority to perform a purely secular task. Her refusal involved discriminating against gay people, causing offence to gay colleagues and contravening the Council’s ‘laudable’ aim of avoiding discrimination between its employees, and between the Council (and its employees) and the community. Nor was L’s right to manifest her religion under Article 9 of the European Convention on Human Rights (ECHR) affected as requiring her to carry out civil partnerships in no way prevented her from worshipping as she wished.

So, applying Ladele, a teacher could potentially be dismissed for refusing to teach from a textbook featuring gay marriage. However, the legality of such a dismissal is based on the Court of Appeal’s interpretation of equality legislation and totally independent of whether or not gay marriage is recognised by the law.  Thus, a school can already potentially lawfully dismiss a teacher for refusing to use textbooks featuring gay people.

Whether or not the Court of Appeal has interpreted the law correctly is currently being considered by the European Court of Human Rights. L, and other claimants, are arguing that UK law failed to protect their rights to freedom of religion and freedom from discrimination at work under Articles 9 and 14 of the ECHR. Whatever the Court decides, public debate on legal issues would be greatly improved if newspapers did not routinely misrepresent matters to the general public.

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