Fire service dispute inflames debate over employees' religious rights

Analysis

Fire service dispute inflames debate over employees' religious rights

When nine employees of a Scottish Fire and Rescue Service refused to attend a gay pride event in Scotland recently, a debate flared up over the balance between the issues of discrimination and the extent to which employees are entitled to have their religious views expressed and protected at work. How would such an issue be handled in Australia?

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When nine employees of a Scottish Fire and Rescue Service refused to attend a gay pride event in Scotland recently, a debate flared up over the balance between the issues of discrimination and the extent to which employees are entitled to have their religious views expressed and protected at work. How would such an issue be handled in Australia?

The issue is particularly complex when the religious and moral beliefs of some people may be viewed as discriminatory or objectionable by others in society.

What happened

According to an article on the website of the UK magazine Personnel Today, published on 12 September 2006, the Fire Service was asked to provide fire safety advice and back-up services to the organisers of a gay pride event that occurred in August 2006.

When nine employees (all male) refused to do so on the basis of their beliefs, the Fire Service took disciplinary action against them. The Fire Service argued that it could not discriminate against any community group by refusing to protect and provide services to it, and that this was a fundamental term of the employees' contracts. Employees were not entitled to pick and choose whom they would or would not provide assistance to, it added.

Advocates for both gay rights and some religious groups made fairly predictable comments about the incident. However, a 'diversity consultant' added that the men felt uncomfortable about attending the event because in similar previous events fire service employees had been exposed to teasing and taunts from the gay community. Further, it had been alleged that the organisers of the latest event had been planning a 'kiss a fireman' campaign.

Discrimination issues

Looking at the incident in the context of Australian legislation, it would appear that if the Fire Service had refused to provide its services, a gay rights group would have a fairly straightforward discrimination case, as sexual orientation would the main reason for its actions, assuming it provided services to other public events. Although equal opportunity legislation does contain some exemptions based around the practising of genuine religious beliefs, the scope of those exemptions would seem too narrow to apply to this situation.

Discrimination against employees?

A more difficult issue is whether the Fire Service would have discriminated against the employees by disciplining them. One argument would be that it did not discriminate because it would have taken similar action against other firemen who refused to attend any other public event. The Fire Service could also argue that its directive to them to attend the event was both lawful and reasonable, but was disobeyed.

OHS

Another argument, however, relates to occupational health and safety.

The employees might be able to argue that the expectation of harassment from the crowd could represent a threat to their health and safety at work, and the employer had a duty to ensure that their safety was protected and they were not exposed to a potential and foreseeable risk, and were entitled to a harassment-free work environment. This would appear to be a difficult case to prove, given the context of the event.

For example, police would also attend events such as this one, to deal with crowd control issues that might involve violence. Paramedics might also find themselves in unpleasant or risky situations. That would simply be part of the respective jobs. Fire Service management would initially liaise with the event organisers to determine the fire and rescue services required, then communicate these to the employees.

Employees who then refused to attend would have to argue that the proposed arrangements meant that the Fire Service had failed to take adequate steps to protect their health and safety, and that this concern was the main reason for their refusal to attend - not the political theme of the event.

Religious and moral beliefs

Religious and moral beliefs generate the most controversial aspect of the case. In Australia, it is unlawful to discriminate against an employee on the basis of his/her religious orientation or beliefs in Victoria, Queensland, Western Australia and the Australian Capital Territory. There have been few cases determined in Australia so far on the issue of religious discrimination in employment, and none involving similar circumstances to the Scottish one.

Some commentators in Scotland argued that if the employees lodged a complaint of discrimination on the ground of religious views, they would have to prove that that they belonged to a religious group and actively practiced the beliefs of that group - in other words, that the religious beliefs governed their day-to-day lives.

In Australia, however, the definitions in Australian legislation do not go that far. They merely define 'religion' or 'religious views' as holding or not holding a belief or view, and there does not appear to be a requirement to be an active member of a religious organisation (although that is untested so far).

Legislation also provides that an employer should attempt to accommodate an employee's religious beliefs to the extent that it is reasonable to do so and does not cause a detriment to the employer. For example, allowing certain groups to conduct prayer sessions at the workplace would be regarded as both reasonable to do, and non-detrimental to a business.

However, it is arguable that putting the employer in a situation where it could not provide services to a client - as could have occurred in the Fire Service case - would be detrimental to the employer, and it would not be reasonable to expect the employer to allow it.

Key questions

The Fire Service case raises the issues noted below. Unfortunately, it is not possible to provide clear answers to them, but the following guidelines may help.

1. Can employees be forced to perform work activities that contradict their moral or religious beliefs?

Legally yes, if the employer's directive is lawful and reasonable. Ideally, however, an employment contract should take the employee's beliefs into account where possible, by considering the scope and content of the job.

Consultation with the employee might help to avert some difficult situations. In the Fire Service case, for example, it might be helpful to explain at recruitment stage that the job scope included covering events involving various political groups and that all employees were expected to be available to attend them. (But if you do this, be careful that you don't then discriminate against job applicants on the ground of their religious or political views.) It may be possible to juggle rosters, etc so that individual employees' views can be accommodated, but this does create the risk that you will be deluged with requests from other employees. For example, the Fire Service may also have had employees who did not wish to attend a Labour Day march because they held strong anti-union views.

2. Should employees be punished/disciplined for expressing their religious views or convictions?

Generally no, but it depends on the context. Again, the main issues would be reasonableness, compliance with the organisation's policies (eg there may be a policy prohibiting public comment on religious or political issues by employees that could be interpreted as comments representing the organisation's views), and whether it was detrimental to the employer's business.

For example, if the expression of certain views by an employee damaged the reputation of the business and cost it customers because it conveyed an impression to the public that the organisation was discriminatory or intolerant, that would probably amount to a breach of the employee's contract. This would be unlikely to apply, however, if the organisation itself was a religious or political-based one, eg a union or employer organisation commenting on government policies. A religious organisation would have to ensure it did not breach any religious, homosexual or racial vilification legislation with its public statements.

It could also be argued that the Fire Service employees' refusal to attend the event could have damaged the reputation of the Fire Service, particularly as it was an 'essential service' that existed to protect all members of the community.

3. To what extent are employees' moral and religious beliefs protected?

The issues here are similar to those discussed in point 2 above. Employees are certainly entitled to hold and practise lawful beliefs and an employer should not attempt to prevent them from doing so, or discriminate against them because of it. However, the employer is entitled to give lawful and reasonable orders to employees, and employees cannot do things that potentially harm the employer's business without the risk of sanctions.

Once again, consultation with employees and understanding their views is strongly recommended as a means of averting or mitigating some difficult situations. The benefits of diversity training and awareness are also self-evident.

Australian case example

A Tasmanian case held that the needs of the employer's clients prevailed over the employee's views about sexual orientation. In Bock v Launceston Women's Shelter Inc and Anti-Discrimination Tribunal (2005) EOC ¶93-390, a lesbian support worker at a women's refuge was directed by her employer to comply with a policy that employees not disclose their sexual orientation to clients during the needs assessment and admission processes.

The employee refused to comply with the policy and was dismissed. When she lodged a complaint of discrimination on the ground of sexual orientation, the Tasmanian Supreme Court upheld the dismissal, finding that the employer's policy was reasonable and the employee's sexual orientation was not relevant to a client's reasons for seeking refuge accommodation.

The employer believed that clients would be offended or discouraged by the employee's actions, and some of them had in fact complained about it. The employee had an agenda to combat community homophobia, and had given it precedence over the employer's business and its clients' needs.

Further information

'Gay Pride and Prejudice at Work', by Georgina Fuller, published on the Personnel Today website on 12 September 2006.

Related

MANAGING A DIVERSE WORKFORCE - Ignore it at your own risk

MANAGING WORKPLACE HARASSMENT- WHY YOU NEED TO BE PROACTIVE

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