– this clause does not deal with discrimination on the grounds of Religion or Belief, that is covered in Clause 3.
– this clause deals with a variety of other requirements as listed in paragraph 4.
Amendments 98 and 99 are sponsored by Baroness O’Cathain, Lord Anderson of Swansea, the Lord Bishop of Winchester, and Baroness Butler-Sloss.
These amendments have the following effect:
(5) The application of a requirement engages the compliance principle if the
application is a proportionate means of complyingrequirement is applied so as to comply with the doctrines of the religion.
(6) The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the
application is a proportionate means of avoiding conflictrequirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.
The wording that they seek to delete was not in Clause 7 of the 2003 Employment Equality (Sexual Orientation) Regulations, nor was it in the The Employment Equality (Sex Discrimination) Regulations 2005 amending Clause 19 of the Sex Discrimination Act 1975, both of which are to be replaced by this Schedule.
The proportionality principle is however a requirement of the European Employment Directive 2000/78/EC of 27 November 2000.
1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.
Or in other words, the Directive contains a strict test which must be satisfied if a difference of treatment is to be considered non-discriminatory: there must be a genuine and determining occupational requirement, the objective must be legitimate and the requirement proportionate. No elements of this test appear in Regulation 7(3).