Facts
Mr McClintock, a Justice of the Peace, and a practising Christian, sat on the Family Panel which places children for fostering and adoption. He objected to the possibility that he might have to place a child with a same sex couple because he considered that there was insufficient evidence that this was in the child’s best interests.
Mr McClintock asked to be relieved from hearing cases which might raise these issues. The Department of Constitutional Affairs refused this request on the basis that there was no general exemption from sitting.
Mr McClintock resigned. He alleged that the DCA’s refusal constituted direct and indirect discrimination and harassment contrary to the Employment Equality (Religion or Belief) Regulations 2003, which prohibit such forms of discrimination in the workplace on grounds of religion, religious belief or philosophical belief.
Employment tribunal findings
An employment tribunal found that Mr McClintock had not suffered direct or indirect discrimination or harassment on grounds of his religion or belief. The basis on which Mr McClintock had asked to be excused from hearing cases was that he was of the view that children were being treated as part of an unacceptable social experiment. He had not made it clear that his objection was rooted in any religious or philosophical belief.
The employment tribunal also held that in any event, the DCA was justified in requiring Mr McClintock to carry out the full duties of the office in accordance with the judicial oath he had taken to adjudicate on any case that came before him and to decide it in accordance with the oath and on its merits.
EAT findings
Mr McClintock appealed to the employment appeal tribunal (EAT), which upheld the tribunal's findings. It agreed that Mr McClintock had not in fact put his objections on the basis of any religious or philosophical belief. It stated that ‘to constitute a belief there must be a religious or philosophical viewpoint in which one actually believes; it is not enough to have an opinion based on some real or perceived logic or based on information or lack of information available’.
The President of the EAT helpfully outlined the test for considering whether views can properly be considered to fall into the category of a philosophical belief as ‘whether they have sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society’.
Comment
It seems that if Mr McClintock might have fallen within the remit of the Regulations had he phrased his objections differently, for example by stating that he objected to the policy of placing children in same sex relationships on the grounds of being a committed Christian.
Given that there have been relatively few cases to date on the Regulations, this judgment at least provides some assistance on the meaning of the words ‘religious or philosophical belief’.