The complainant has now withdrawn from the case. The AoS issued a press release which appears below in full. They now assert (but why did they wait so long?) that their withdrawal of the employment offer was not because the applicant was homosexual, but because he was “in an open relationship outside of wedlock”. This is curiously described in the press release as “not discriminating… on any…grounds”. What they mean of course is that they DID discriminate, but on grounds which they consider to be lawful.
The High Court decision to which reference is made in the press release did not alter the law. It is the same now as it was when the case was brought.
Apostleship of the Sea - Press Release (only on demand):
Friday, 14 May 2004
Applicant withdraws discrimination case against Apostleship of the Sea
Statement by Alexander King, Director of Fundraising & Media:
“Our legal representatives, were approached by ACAS yesterday, and were told that the applicant was willing to withdraw his accusations if we did not pursue him for legal costs.
We have agreed to this settlement on the basis that the applicant is effectively withdrawing the case accepting that the matter cannot be pursued further.
The settlement by the applicant seems to be in recognition that, in effect, AOS has no case to answer, especially following the High Court’s decision to uphold the Employment Equality (Sexual Orientation) Regulations 2002 and Employment Equality (Religion or Belief) Regulations 2003.
For the avoidance of doubt we wish to make it clear that the applicant has not received any payment from AOS to resolve this case .
We would like to restate that we did not discriminate against the applicant on grounds of his sexual orientation or on any other grounds. AOS has at all times acted fairly and lawfully with regard to his application for employment. In settling this case, we believe that the applicant now accepts this to be true.
We made this clear to him at the time, stating that, as an agency of the Catholic Church in England and Wales, we could not employ anyone for a role in ministry as a Port Chaplain who was in an open relationship outside of wedlock as this was contrary to the Catholic values that the post holder was required to uphold. This applies irrespective of the sexual orientation of the candidate.
AOS strives at all times to treat all individuals equally and with respect and actively seeks to encourage fair treatment for all.
We are pleased that the matter is now concluded and that we can continue with our mission alongside international seafarers, under the patronage of Our Lady, Star of the Sea.”
Judgement has been delivered in the High Court case brought by several trade unions. For the background read my earlier note here.
Press Association via the Independent Unions lose ‘faith-based’ equality fight
Trade unions today lost their High Court battle for a ruling that new equality regulations are flawed because they fail to protect lesbian and gay workers from discrimination by “faith-based” employers.
A judge upheld the legality of the Government’s 2003 Employment Equality (Sexual Orientation) Regulations and refused to condemn them as “incompatible” with European law.
Christian groups, including the Evangelical Alliance, Christian Schools Trust and Christian Action Research and Education (CARE), all intervened to resist the union challenge, which was brought against the Secretary of State for Trade and Industry.
The evangelicals - who believe homosexuality is contrary to scripture - argued that Christian organisations had the right to formulate and apply their own policies regarding the employment of gays as clerics and as teachers in faith schools.
In his ruling, Mr Justice Richards refused to rule that the equality regulations were “incompatible” with European law.
He said: “To treat the regulations as reducing the level of protection (from sex discrimination) seems to me to require a distorted view of their effect.”
However, in recognition of the importance of the case, he gave the unions, which include Amicus, Unison and the RMT, leave to appeal to the Court of Appeal.
Separately, the unions - in an action co-ordinated by the TUC - unsuccessfully challenged provisions which they said enabled employers to exclude same-sex couples from pension and benefits rights currently enjoyed by heterosexual married couples.
Update - further newspaper reports
Guardian Faith schools cannot sack teachers for being gay, court rules
Here is a slightly more technical news report from HR Gateway (registration required) Unions lose sexual orientation inequality case
Brendan Barber, general secretary of the TUC said today that judge’s verdict was ‘disappointing’. “Important issues are at stake. No one should be treated differently because of their sexuality,” he said.
Unions will be consulting their legal teams over the next few days, said the TUC today, to “try and figure out the next move”. The individual unions need to make a decision whether to fight the case in the Court of Appeal.
Campaign group Stonewall told HRG today that it was “deeply disappointed” by the outcome of the case. The Government had given religious organisations a “licence to discriminate”, it said, while same sex couples still lose out on pension rights.
A further note from HR Gateway is here
The full text of the ruling is online here. (Warning:this is a very large document)
Legal action against Catholic Charity
A Gay man is taking legal action against a Catholic Charity for refusing to employ him. His case will provide an important benchmark - testing new government legislation which outlaws discrimination against homosexuals. It also challenges the limits of an exemption to the legislation granted to religious organisations.
The Guardian carried this report on 27 April, Charity to face tribunal over gay employment law.
We seem to have the first instance of an Employment Tribunal case relating to the new regulations. The Independent and The Tablet both report the case.
A gay man is taking legal action against a Catholic charity which he alleges withdrew a job offer on the grounds that he was in a homosexual relationship.
The man had been verbally offered a post as a lay chaplain with the Apostleship of the Sea (AOS) when he disclosed to them that he was living with his partner. His case will test new government legislation which outlaws discrimination against homosexuals in the workplace. It will also challenge the effectiveness of an exemption granted to religious organisations.
The 27-year-old man, who has asked to remain anonymous, says he is determined to fight the AOS decision and has taken his case to an employment tribunal. For its part, the AOS believes it was fully justified in its decision not to employ an active homosexual in a pastoral role. The AOS is an agency of the Bishops’ Conference of England and Wales and is concerned with the spiritual and social welfare of seafarers.
The charity’s National Director, Commodore Chris York, confirmed that he offered the man a job as a port chaplain before he knew he was homosexual. York told The Tablet that during a discussion about where he would be based, the man disclosed that he could not be completely flexible because he had a lease on a house and was in a relationship with another man.
The Employment Equality (Sexual Orientation) Regulations, which came into force in December, make it illegal to discriminate on the grounds of sexual orientation. But the change has been a matter of controversy for religious groups, which maintain that their churches, schools and charities should be free to turn down non-believers and other applicants who do not conform to church teachings.
Pressure from faith groups helped to force a special exemption from the regulations, but this exemption has already been taken to judicial review in the High Court by a group of unions, including Amicus, which has a section for clergy. A decision is pending. It is understood that a second employment challenge to the Catholic church using the same legislation is in the pipeline.
The Diocese of Sydney made news in Australia recently because of the questionnaire that all candidates for ordination, or clergy seeking to become licensed in that diocese, are required to complete.
The Australian Priests forced to reveal sexual past
Sydney Morning Herald New priests to be quizzed over sexual history
ABC Radio Anglicans use questionnaire to weed out potential paedophiles
ABC Bishop stands by sex questionnaire
Today, the Church Times publishes further reports on this, at Sydney probes clergy sex-lives and also publishes the full text of the questionnaire itself. The text of the covering sheet entitled “Privacy Statement” is shown below.
I will have more to report on this topic soon.
ARCHBISHOP’S OFFICE PRIVACY STATEMENT
The Archbishop’s office respects your privacy.
The Archbishop’s office is responsible for supporting the Archbishop in discharging his episcopal functions and also administers the diocesan Registry, Professional Standards Unit and diocesan Archives.
We usually collect personal information such as a person’s name, age, contact details, occupation and family details to discharge these functions but we may collect other personal information as well. We use this information for the proper administration of the Diocese including assessing ordination applicants, licensing clergy and lay people for ministry in the Diocese, administering professional standards within the Diocese and recording significant historical events in the diocesan archives. When we collect sensitive information, as defined in the Privacy Act, we will collect it with your consent when required to do so by law.
The Archbishop’s office may disclose your personal information to third party service providers, agents or contractors such from time to time to help us to provide our services. If we do this, we generally require those parties to protect your personal information in the same way we do.
We use a variety of physical and electronic security measures including restricting physical access to our offices and the use of firewalls and secure databases to keep personal information held on IT systems secure from misuse, loss or unauthorised use or disclosure.
Where appropriate, we will handle personal information relying on the small business exemption.
Generally, you can access personal information we hold about you. If we deny your request in some circumstances we will tell you why. Please contact the Registrar at Level 1, St Andrew’s House, Sydney Square, Sydney NSW 2000 or on 9265 1519 or at firstname.lastname@example.org to ask for access to your personal information, if you have a complaint about the way we handle your personal information, or if you would like more information about our approach to privacy, other members of the Anglican Church of Australia or our third party service providers, agents or contractors.
Stephen Bates reported in the Guardian some time ago now:
Bishop gives warning on equality law.
A Church of England bishop has stepped out of line with his colleagues by warning religious organisations not to campaign too vociferously for exemptions from equality legislation to avoid having to employ gay or transgender people.
David Walker, the Bishop of Dudley, warned that if faith-based groups campaigned too hard to be allowed to employ only those who shared their religious beliefs, they risked losing their special status in society.
Here is a fuller version of what David Walker said on this subject.
Completely unrelated to the above, I found this story from Uganda about Equality in Norway:
So Many Rights Yet So Far From Utopia. The whole report is interesting, but I can’t help mentioning that Norway has had a woman bishop since 1993.
As noted in my earlier report the National Union of Teachers is participating in the action now under way in the High Court to challenge parts of the new employment regulations. Below is a copy of the NUT Briefing Paper on this.
The Judicial Review is expected to last three days and it is envisaged that judgment will be reserved. I attended part of this morning’s session in Court 10 at the Royal Courts of Justice in the Strand.
On 17 March the High Court will hear a challenge to parts of the new Employment Equality (Sexual Orientation) Regulations 2003. The NUT claims that parts of the Regulations are unlawful as they have no legal basis in the E.U. Employment Directive which they are supposed to implement, and that they are in breach of fundamental human rights.
The Union’s main concern is that Regulation 7(3) allows too broad a scope for faith-based employers to discriminate against lesbians and gays on the basis of their sexual orientation. The Regulations allow religious organisations to discriminate against some employees if they can show they have done so in order to comply with strongly-held convictions of a significant number of the religion’s followers, or in accordance with the religion’s doctrines. This could allow faith schools a very wide defence to a teacher’s claim of discrimination on grounds of sexual orientation, based on the supposed convictions of the religion’s followers.
Voluntary aided faith schools can already take into account whether a teacher has upheld the tenets of their religion under existing provisions in the School Standards and Framework Act 1998.
No union or non-religious interest group was consulted on this provision, which was a last minute change introduced by the government. It did not appear in the previous draft regulations and was not canvassed in the consultation documents published previously.
We are also concerned that the Regulations allow religious organisations to determine whether an employee or applicant is of a particular sexual orientation. They can discriminate if they are reasonably satisfied as to their sexuality even if they are mistaken.
The Regulations will introduce uncertainty, confusion and animosity. Committed teachers in faith schools may become vulnerable to misinformed or over-zealous application of the provisions. Already, some organisations that run independent schools have said that they will use this law to ensure that no lesbians and gays are employed.
Starting tomorrow, a legal challenge to the validity of Regulation 7(3) of the Employment Equality Regulations (Sexual Orientation) 2003 will be made in the High Court by the National Union of Teachers and other trade unions. For background on this, see my earlier reports here and here.
The TUC has issued a press release which is mostly about the challenge to the part of the regulations relating to pensions, but buried in the Notes for Editors is the following important item:
The other aspect of the unions’ legal challenge, which involves the NUT as well, relates to regulation 7(3) which allows for sexual orientation discrimination where someone works for an organised religion. The unions are arguing that the law may allow employers to stop gay, lesbian or bisexual people from working at church schools and other religious organisations such as voluntary organisations.
Press Association report Unions Oppose ‘Anti-Gay’ Employment Laws mentions some of the Christian groups opposing the unions:
Christian groups, including the Evangelical Alliance, Christian Schools Trust and Christian Action Research and Education, are intervening in the case, which is being brought by the unions against the Secretary of State for Trade and Industry.
The evangelicals - who believe homosexuality is contrary to scripture - argue Christian organisations have the right to formulate and apply their own policies regarding the employment of gays as clerics and as teachers in faith schools.
The Times has a column today about the proposals coming before Synod to grant new “employment rights” to clergy. In Heaven only knows how Church will cope with employment rights two lawyers write:
Could a vicar be sacked for failing to reach his performance targets
IF A clergyman is sacked, he has no legal redress. Clergy are considered to be office-holders answerable to God rather than any terrestrial authority. This spiritual, instead of temporal, relationship means that they cannot take their employers to court.
But now the Church of England is considering granting the rights enjoyed by most other employers to its clergy. If accepted by the Government this would mean ministers becoming entitled to redundancy payments, holidays and protection from unfair dismissal and having access to employment tribunals to resolve disputes.
The article goes on to discuss discrimination:
The proposal to bring the clergy within the employment fold raises interesting issues. Laws introduced in December prevent discrimination on the ground of sexual orientation. The issue of clergy who are practising homosexuals is already a hot topic. Where the employment is “for the purposes of an organised religion”, the new laws do allow discrimination on the ground of sexual orientation to avoid conflicting with the strongly held religious convictions of a significant number of the faith’s followers. The Church will now have to satisfy these criteria if it seeks to justify discrimination against homosexual applicants.
They do not make clear that this is already the case, as the new employment regulations mentioned already apply to all clergy (despite the doubts expressed by Church House officials) and this situation is unaffected by the new proposals. Nor do they make clear that the new proposals will not alter the “office holder” status of many clergy, but instead will confer these “Section 23 rights” upon them as office holders, in exchange for them accepting various responsibilities.
The Archbishops’ Council published guidance for dioceses, parishes and places of worship in November 2003.
This can be found in a Word file titled Implementation of the Employment Equality Regulations 2003 on the website of the National Society for Religious Education, not the most obvious place for dioceses, parishes and places of worship to look. You can download the Word file here. Alternatively the full text is reproduced here as a web page for easier reading.
The introduction says:
“The Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 outlaw discrimination in employment and vocational training on the grounds of sexual orientation and religion or belief and come into force on 1st and 2nd December 2003 respectively.
There is much in these regulations that is of central interest and some things that need to be clarified by case law (e.g. the definition of a religion or an ethos). The Council has prepared this advice for dioceses, parishes and places of worship as a general guide to the new regulations and in the hope that it will assist those concerned with employment decisions in thinking through their implications. It is not an attempt to be comprehensive nor is it designed to provide definitive legal advice.”
In addition, and as explained in the guidance document, the Council has prepared two further documents, which are available only as pdf files of about 200K each, downloadable from:
The foreword to them says that these guides provide some help with applying the requirements of the law e.g. in recruitment processes, writing job descriptions etc and gives examples of it in practical situations. See below for more.
UPDATE 4 FEB 2004
The documents listed above (well, not the schools-specific one) are now also available from this page on the CofE website itself. Cause and effect?
The foreword also discusses the topic of Christian ethos:
“The second half of this foreword gives some pointers about:
As stated in the paper from the Archbishops’ Council, the legislation says that if an employer wishes to advertise for, select, employ or promote, in our case, a Christian in preference to another equally qualified candidate who is not a Christian, the employer must be able to justify the decision. In the first instance, such an employer must have a Christian ethos.
Ethos is the distinctive identity of an organisation. It captures the shared motivation of those who belong to it. As a piece of guidance for the whole of the Christian sector, this guide refers generally to Christian ethos rather then the ethos of any one specific denomination.
Clearly, Anglicanism has its own identity and ethos which flow from the basic tenets of being an Anglican. These tenets are set out on the Church of England website www.cofe.anglican.org, see what it means to be an Anglican. When you come to develop your own ethos and values statement or to work through a recruitment process, you may wish to consider these tenets together with the advice provided in this guide, in order to help you create a more customised approach.
Hopefully, this guide will help you in thinking generally about Christian ethos and the Church of England website together with other Anglican material will assist you in designing a more tailored approach. However, the key purpose for developing an ethos statement is to describe the unique character and shared motivation of any group of people and, therefore, it is vital that your ethos statement describes who you are as a church, place of worship or Christian project. It is important that your documentation reflects the characteristics and values of your environment.
A key purpose of this guide is to help you recruit a Christian, where appropriate, fairly within the requirements of the law. There will be occasions, for example in the recruitment of a cleric, when it is necessary for the purposes of carrying out the role, to specify the recruitment of an Anglican. There will be other recruitment situations where this will not be the case. Where it is necessary to specify the recruitment of an Anglican, it will be important to demonstrate the reasons so that any potential allegations of discrimination can be avoided. In these situations, reference to the Anglican ethos will be helpful.”
Today, the The Employment Equality (Religion or Belief) Regulations 2003 take effect.
The text of the regulations is here.
The text of the ACAS guidance can be downloaded as a pdf file from here.
The regulations have already been amended to bring occupational pension funds within their scope, and the text of the amendment is here.
For other links covering both this and the sexual orientation regulations, see here.
The Guardian has published useful guides to each of the new sets of regulations:
Religion or Belief
The Guardian also reports that a solution has now been found to the difficulties of the 16 Roman Catholic Sixth Form Colleges who were caught by this legislation.
Over at The Times two columnists discuss these changes: Alan Coren and Libby Purves.
The BBC also has coverage:
Respecting all the workers
Q&A: New anti-discrimination laws and more amusingly
Could an agnostic be bishop?.
This story refers to “A document distributed by Lambeth Palace outlines how parishes need to make the link between such roles and religious belief, if they are to avoid a slew of writs” but I think this is a mistaken reference to the document issued earlier in the year by the Evangelical Alliance.
Today the Trades Union Congress announced a High Court challenge to the religious exemption clauses of the new employment regulations. TUC challenge government on gay rights. The trade unions involved are: Unison, Amicus, the Public and Commercial Services Union, the RMT and teaching unions NUT, NAS/UWT and NATFE.
Later, the Press Association reported that the Evangelical Alliance has been given permission to argue its case for “religious autonomy” by intervening in the case.
The Alliance - described in court as representing “a multiplicity of Christian organisations” including the Christian Schools Trust - says they have the right to formulate and apply their own policies regarding the employment of gays as clerics and as teachers in faith schools.
Meanwhile similar regulations came into effect in Northern Ireland, and there also they were criticised for containing an exemption for religious organisations. See Gays to Get Legal Backing at Work.
By a ironic quirk of the liturgical calendar, the day on which the The Employment Equality (Sexual Orientation) Regulations 2003 take effect is St Andrew’s Day.
My article published in the Church Times ten days ago appears below.
The text of the regulations is here.
The text of the ACAS guidance can be downloaded as a pdf file from here.
More advice from the Department of Trade and Industry is available here.
The regulations have already been amended to bring occupational pension funds within their scope, and the text of the amendment is here.
Earlier reports by me can be found here.
From the Church Times 21 November 2003
Burden of proof rests on employer under new law
Want to offer the job only to a heterosexual Christian?
Then watch your step, advises Simon Sarmiento
It will be illegal from early December onwards to discriminate in the British workplace because of religion, belief or sexual orientation. Special exemptions have been granted for religious organisations, but these are narrowly drawn and do not apply automatically.
Two new sets of Employment Equality regulations apply to all employment and vocational training. They cover the processes of appointing Church of England clergy, including bishops. They prohibit direct discrimination in recruitment, promotion, transfers, terms and conditions, dismissals, or vocational training. Only in this area of direct discrimination do special exempting clauses apply.
Indirect discrimination - that is, any unjustified practice which disadvantages people of a particular religion or sexual orientation - the harassment of workers, and the victimisation of complainants or their supporters, are all prohibited for churches, mosques, or temples, just as for everyone else.
Earlier this month, the Advisory, Conciliation and Arbitration Service (ACAS) published detailed advice on how to comply with these new requirements.
Both regulations allow any employer to claim an exemption from some of the direct-discrimination rules. What is called a Genuine Occupational Requirement (GOR) is where “considering the nature of the work and the context”, being of a particular religion, or being of a particular sexual orientation, is “determining”. The appointment of chaplains to hospitals is given as a (religion) example. But additional clauses grant further exemptions to religious organisations.
In every case, a careful procedure must be followed in the appointment process to claim a GOR. Advertisements and other material should explicitly state what GOR is being claimed, and each post must be considered separately, says ACAS. Would-be applicants are at liberty to complain to an employment tribunal that they have been prevented from applying, and that a GOR claim is unjustified. The burden of proof rests with the employer and only a tribunal or higher court can give an authoritative ruling. Under the Data Protection Act, applicants may ask for copies of notes taken during the selection process.
The additional clause is different in each set of regulations. The Religion or Belief clause is more widely available. To claim an exemption on ground of religion, an organisation has to demonstrate first that it “has a religious ethos” but ACAS says that “a GOR exemption cannot be claimed if the nature of the role and the context within which it is carried out is not of sufficient profile or impact within the organisation to affect the overall ethos of the organisation”.
The Sexual Orientation additional clause is quite different. It has to be shown that the specific job is “for the purposes of an organised religion” and that a GOR is necessary (not merely preferable) “so as to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers”. But it allows a GOR to be claimed, not only for being of a particular orientation, but also for “a requirement related to sexual orientation” (italics mine). This was inserted at the request of the Archbishops’ Council and is intended to allow the application of a “marriage or abstinence” policy. But it will ultimately be for a tribunal to decide if that policy is justified in law.
ACAS has published the definitive versions of its guidance documents on both sets of the Employment Equality Regulations 2003:
Sexual Orientation and the Workplace
Religion or Belief and the Workplace
These can both be downloaded from the ACAS website as pdf files now. There are some changes in these from the earlier drafts. More details about this shortly.
Also, Croner’s has reported that the new Employment Relations Bill due later this month is expected to recognise the Church of England as an employer for the first time, thus giving statutory employment rights to the clergy who are currently regarded as being employed by God.
Croners reports that seven UK trade unions, including Amicus and Unison, have lodged a High Court challenge against laws banning discrimination on the grounds of sexual orientation due in December.
The challenge covers two issues: Regulation 25, which relates to pensions, and Regulation 7(3), which affects people working for religious organisations.
I will be following this closely.
Back in January, the Labour Campaign for Lesbian and Gay Rights (LCLGR) was worried about the religion or belief aspects of the regulations.
“We are fearful of the potential conflict already identified in the area of religion or belief and if this is not resolved by the draft it will lead to immediate, and possibly damaging, legal clashes. Simple changes to the regulations will reduce the scope for discrimination by organisations claiming the protection of the law on religion, and at the same time, at the very least, this problem calls for the preparation by government of authoritative guidance in this area.”
Yesterday, LCLGR issued a call for Regulation 7(3) of the Employment Equality (Sexual Orientation) regulations to be removed. LCLGR says this could become another Section 28 and haunt the government.
“We also call on all those who believe in justice and equality to lobby the Prime Minister, the government and MPs to ensure that Regulation 7(3) is removed.”
Text of LCLGR press release (otherwise only available in Word format) below…
18th August 2003
LCLGR welcomes Repeal of Section 28 but calls for the Government to avoid setting up another unjust law.
Now that Labour have successfully repealed Section 28 LCLGR is calling on the Government to ensure the removal of Regulation 7(3) from the Employment Equality (Sexual Orientation) regulations 2003.
Simon Wright and Maria Exall Co-Chair’s of LCLGR said: “These employment regulations were brought in to tackle discrimination against lesbian, gay and bisexual people at work. There was already an exception within the draft regulations to allow employers to discriminate if this is a “genuine occupation requirement”. This was included in the consultation draft. But now we have seen the religious Right extend the ability to discriminate against us by getting another exception - Regulation 7(3) included. This regulation will allow discrimination where the employment is for the “purposes of an organised religion”.
“We call on the government to remove this unnecessary and unjust exception and ensure that legislation intended to combat discrimination against lesbian, gay and bisexual people does just that. We also call on all those who believe in justice and equality to lobby the Prime Minister, the government and MP’s to ensure that Regulation 7(3) is removed. Failure to do so could end up with this becoming Labour’s version of Section 28.”
How the world sees the Church of England on this topic
Stephen Bates in the Guardian on 2 May, Equality law must bind church, say gay Christians
Press release from the National Secular Society on 9 May, New Employment Protection Law Will Increase Discrimination
Mary Ann Sieghart in The Times on 6 June, Should Nigeria say whether our priests can be gay?
Sarah Hall in the Guardian on 14 June, Gay sacking right ‘unlawful’
Amicus trade union press release on 14 June, Committee questions legality of regulations on sexual orientation discrimination
And on 16 June, Unison
Giles Fraser in the Guardian on 20 June, The bullshit before the but
Jon Silverman for the BBC on 27 June, Gay rights law threatens holy row
National Union of Teachers press release on 21 July, to seek judicial review of Regulation 7(3).
See this entry in the main Thinking Anglicans blog.
Two items got deleted by the subs: one was a copy of the text of the offensive clause which was intended as a sidebar but is now available here.
The second omission was the following bit of detailed explanation about it:
The additional clause (see sidebar) does not refer to “being of a sexual orientation” but to “a requirement related to sexual orientation” which is entirely open-ended. However, it may not be self-evident to a tribunal that “marriage or abstinence” applied equally to all people meets this test. The clause also omits reference to the need for proportionality in the application to each particular case, which is a requirement of the EU Directive.
The rest of my material on these regulations can still be found here. I hope eventually to tidy those pages up. But before that, I intend to write some notes about how these regulations will work in practice, based on the ACAS guidance notes I mentioned in an earlier blog.
I was surprised to get an email today from ACAS inviting my comments on their drafts of Guidance Notes for the two sets of new employment regulations (Sexual Orientation, Religion or Belief).
They are conducting a public consultation, see their web site for details and copies of the drafts.
I also added a new category here of Employment Equality.
The Joint Committee on Statutory Instruments met yesterday and took evidence from DTI officials. You can read what was said at the meeting here.
Additional links to press stories and to trade union comments are on my website.
The Independent on Sunday carries this story about a possible legal challenge to the regulations.
I wonder if the Archbishops’ Council will be called to testify :-)
The Guardian is in favour of a unified enforcement body.
I have prepared a web page containing links to all the primary source documents that I know about, including copies of the two contentious new draft regulations which I obtained from the DTI today. They should also appear on the DTI website shortly.
The situation is more complicated than at first appears. The new drafts contain subtle changes of wording from the originals, and do not simply reproduce the wording proposed by the Archbishops’ Council. There are important differences between the wording used for “Religion or Belief”, and that used for “Sexual Orientation”.
I am preparing a detailed analysis of these documents.
This wording has precedent, as witness Section 19 of the Sex Discrimination Act 1975 (as amended), reproduced below.
19. Ministers of religion etc.
19(1) Nothing in this Part applies to employment for purposes of an organised religion where the employment is limited to one sex so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.
19(2) Nothing in section 13 applies to an authorisation or qualification (as defined in that section) for purposes of an organised religion where the authorisation or qualification is limited to one sex so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.
19(3) In relation to discrimination falling within section 2A, this Part does not apply to employment for purposes of an organised religion where the employment is limited to persons who are not undergoing and have not undergone gender reassignment, if the limitation is imposed to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.
19(4) In relation to discrimination falling within section 2A, section 13 does not apply to an authorisation or qualification (as defined in that section) for purposes of an organised religion where the authorisation or qualification is limited to persons who are not undergoing and have not undergone gender reassignment, if the limitation is imposed to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.
The new drafts do not appear to be on the web at the present time.
The earlier drafts can be found here, together with other documents related to the consultation.
When the new drafts are available I will publish the links to them here as well.
Below is the full text of the response, dated 23 January 2003, of the Archbishops’ Council to the DTI consultation “The Way Ahead”.
EQUALITY AND DIVERSITY
Church of England Response to DTI Consultation Document
1. The Church of England welcomes the opportunity to respond to the Consultation Document which the Government issued on 23 October.
2. In response to the earlier Consultation Document on implementing the Article 13 Directives on race and employment we looked forward to discussing with DTI officials our approach to issues of equality and diversity. We have been grateful for the discussions over recent months and hope that any remaining areas of disagreement can be explored further in the same positive spirit.
3. Without repeating all the general points made in our earlier response, we would like to re-emphasise our strong support for creating a legal framework to safeguard basic rights and to promote dignity, equality and respect for all members of society. For Christians, that understanding of equality is derived from our belief about the justice of God and His action in the world.
4. The inter-action between public law and public attitudes on certain issues is necessarily complex. By formulating enforceable rights and proscribing what is clearly wrong, the law can itself help to influence attitudes positively as it has done over the past quarter of a century with anti-discrimination legislation on gender and race. For anti-discrimination legislation to be effective it must, however, retain the support of fair-minded people and be seen to be both necessary and workable. We believe that this is achievable in respect of the new strands of discrimination covered by the European Directive. There are, however, some respects in which we believe the draft regulations need amendment if that objective is to be achieved.
5. We comment in more detail on this below. The general point to underline is that we want to be in a position where we can encourage our own members to contribute to the development of best practice in this important area of our social life. The best context for this will be one in which there has not been a difficult and polarising public debate about the extent to which the regulations respect the doctrinally based needs of the Churches and other faith-based communities.
6. The Church recognises that the Government has limited scope for manoeuvre in implementing the Directive. At the same time, it is important not to read Article 4 in isolation. Article 2 (5) of the Directive, together with paragraph 24 of the Preamble have the clear intention of protecting the rights and freedoms of Churches and religious organisations and allow member-States to make provision for this in national law. Moreover, the implementation of the Directive must be consistent with freedom of thought, conscience and religion as enshrined in Article 9 of the European Convention on Human Rights.
A Single Equality Body?
7. Our staff attended the seminar organised by the DTI?s Women and Equality Unit on 25 July. The Consultation Document (‘Equality and Diversity: making it happen’) helpfully identifies a number of the key issues which need to be addressed before a single equality body could sensibly be introduced.
8. With the introduction of new strands into anti-discrimination legislation we agree that the arguments for creating a single Equality Commission merit serious consideration. A single body could have advantages both for individuals and groups who believe they are experiencing discrimination and for employers seeking to put in place equal rights procedures and policies in a coherent and consistent way. Properly structured, a single body could reduce some of the bureaucratic and cost overhead. We understand that in Northern Ireland it has been possible to bring together successfully the work of the Fair Employment Commission, the Commission for Racial Equality and other bodies into a single Equality Commission.
9. Nevertheless, there are undoubted risks and challenges in attempting such a substantial organisational change. It seems to us that these need to be considered quite carefully before any decision - even one of principle - is taken. We note, for example, that apart from a passing mention in paragraph 7.8, there is no substantive discussion of the resource implications of creating a single body. It may be that a single body would create some economies of scale and enable more resources to be focused on the key tasks of education and enforcement, but this, together with wider affordability issues, needs to be considered before any decision, even of principle, is taken.
10. In assessing the case for a single commission it will also be important to be satisfied that there would be no loss of focus on the individual strands and, in particular, no artificially homogenised approach. While there may be some common principles, race, gender, age, disability, religion and sexual orientation, each raise their own distinct issues in relation to tackling discrimination. It is not axiomatic that identical investigation and enforcement powers are needed for each.
11. We therefore welcome the Government’s preference for a ‘wide and deep debate’ and believe that the Government should take time to give all the options careful consideration.
12. We have five concerns about the present draft of the Regulations. The first two relate to the draft Employment, Equality (Religion and Belief) Regulations. The third relates to both those and the draft Sexual Orientation Regulations. The fourth relates to the amendment to the draft Race Relations Act 1976 (Amendment) Regulations and the fifth arises solely in relation to the draft Sexual Orientation Regulations.
13. The first is, we believe, the most straightforward. Regulation 7 of the Draft Employment Equality (Religion and Belief) Regulations defines the exception for genuine occupational requirement. We are content with this, subject to the clarification we ask for in paragraph 14 and an amendment to include dismissal. The present formulation is, in our view, inadequate and illogical, in that it confers protection on Churches and religious organisations at the point of recruitment and promotion but not in relation to dismissal. If, for example, someone abandoned their allegiance to the Church it would be unacceptable for them to be able to insist on remaining in post which carried with it a genuine occupational qualification.
14. Secondly, also on Regulation 7, we believe that it would be highly desirable, in the interests of clarity for both employers and employees, if the Regulations were to be more precise about when an organisation can be said to have ‘an ethos based on religion or belief’ and how that ethos will be determined for the purposes of Regulation 7(3) of the draft Employment Equality (Religion and Belief) Regulations. In the absence of express provision in the regulations, the position of many organisations (particularly those not established for explicitly religious purposes) may remain very unclear pending the provision of guidance through individual cases.
15. The third point concerns discrimination by way of harassment. Here, we believe that the wording of the Directive itself at Article 2 (3) is to be preferred to the wider concept of harassment used in both sets of Draft Regulations.
16. The change we seek could be effected by replacing ‘or’ with ‘and’ at the end of Regulation 5(1)(a) in both sets of Regulations. We also believe that the phrase ‘including in particular the perception of B’ should be omitted. It seems to us that the key point here, and one which we strongly support, is that individuals should have legal protection against harassment. That is clearly achieved by the words ‘if, having regard to all the circumstances, it should reasonably be considered as having that effect’.
17. We believe that the particular emphasis in the present draft on the perception of the complainant is unnecessary, will be unduly onerous to employers and, despite the suggestion in paragraph 19 of the explanatory notes, increase the risk of trivial claims. We accept that there are instances in the discrimination field where the perception of the individual should have particular weight - for example in influencing whether the police record a reported crime as a racially motivated offence. But in relation to these regulations we believe that the present draft does not quite strike the right balance. If the law makes it possible for people to succeed in cases which are not truly deserving there is a risk of undermining the broad support for the law for employers and the general public which we need to see.
18. Our fourth concern is that the proposed Regulation 25 in the draft Race Relations Act 1976 (Amendment) Regulations might result in an undue narrowing of the exemption for charities conferred by s.34 of the Race Relations Act 1976. We are concerned that the test of ‘compensating for disadvantage’ might not be met in the case of a religious body - for example a Christian charity working overseas - which focussed its work on the religious needs of a particular ethnic group. We believe it to be an unjustified and undesirable restriction on charitable activity that work which focussed on the religious needs of a particular ethnic group could, under the Regulation as drafted, be at risk of challenge on grounds of discrimination unless it could be said to ‘meet the special needs of persons of that group in regard to their education, training or welfare’.
19. The final, and fundamental issue, arises from the potential conflict between the requirements of the law and religious belief. Such a conflict could arise here, in relation to sexual orientation and sexual conduct . In its doctrines and teachings the Church of England, along with other Churches and faith groups, draws a clear distinction between orientation and behaviour. We understand, however, that the Courts and tribunals are most unlikely to recognise any clear-cut distinction along these lines in considering discrimination cases brought under the new regulations. This means that actions taken by the Church to enforce its own doctrines and beliefs in relation to sexual conduct could be found unlawful. For example, a bishop who denied ordination to someone in a gay or lesbian relationship might be found to be discriminating unlawfully on grounds of sexual orientation.
20. The Church of England’s own teaching is set out most clearly in the document Issues in Human Sexuality which was a statement from the House of Bishops in November 1991. It noted that homosexual activity could not be endorsed by the Church as:
‘…a parallel and alternative form of human sexuality as complete within the terms of the created order as the heterosexual. The convergence of Scripture, Tradition and reasoned reflection on experience, even including the newly sympathetic and perceptive thinking of our own day, make it impossible for the Church to come with integrity to any other conclusion. Heterosexuality and homosexuality are not equally congruous with the observed order of creation or with the insights of revelation as the Church engages with these in the light of her pastoral ministry.
21. This does not mean that the Church challenges the principle that homosexuals should have full equality and protection before the law. On the contrary, we welcome the steps taken over recent years to combat all prejudice, to repudiate homophobic violence and to create new legal safeguards and protections. The new regulations are an important part of that process. Nevertheless, it is crucial that they do not encroach on the freedom which all religious organisations must have to set and enforce their own conduct rules in relation to those who work for and represent them.
22. What those conduct rules should be is a matter of continuing debate within the Church of England and indeed within many other Churches. The point is simply that however those internal debates are resolved, Churches and other faith-based organisations must not find themselves in a position where the law of the land is preventing them from conscientiously applying their own sincerely held doctrines and beliefs on moral issues.
23. The need to safeguard religious doctrine, belief and susceptibilities was, of course, recognised as long ago as 1975 by Section 19 of the Sex Discrimination Act. A corresponding provision was included by the Government in the Gender Reassignment Regulations of 1999. Our officials have already suggested to yours that the solution to our difficulties could be provided by a provision directly modelled on the earlier precedents.
24. We strongly urge the Government therefore to insert in part 5 of the Regulations the following provision:
“Nothing in parts II to IV of these Regulations shall render unlawful anything done for the purposes or in connection with an organised religion so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.”
25. Parliament has already, rightly, accepted that the churches and other faith groups must be able to maintain differential treatment between men and women and between the married and unmarried where this is to comply with doctrine or to comply with religious susceptibilities. We believe that it would be wrong in principle as well as inconsistent and contrary to the Directive’s underlying intention as set out in Article 2(5) and paragraph 24 of the Preamble, not to provide similarly in relation to sexual conduct.
26. Our officials stand ready to discuss details of this with yours if that would be helpful. Given the importance of the issue we would also want the opportunity for discussions at a very senior level of Government and possibly in partnership with other Church leaders, if a satisfactory solution cannot be found.
23 January 2003
This concerns the Archbishops’ Council response to an EU directive banning discrimination in employment on grounds of religious belief or sexual orientation.
The following item is excerpted from the Church Times of 9 May (not on their website):
The Archbishops’ Council is seeking to secure an opt-out from parts of the EU legislation, via a clause inserted into the government proposals which would declare:
Nothing in Parts II to IV of these Regulations shall render unlawful anything done for the purposes of or in connection with an organised religion so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.
The Council was responding to a DTI consultation, which closed in January amid protest from faith-based groups that the proposed new laws would substantially restrict the freedom of Churches and other religious bodies to employ staff who were practising believers.
Parliament will now debate the legislation, which is expected to be implemented in December.
This proposed wording is quite extraordinary in its scope and vagueness, and I am going to follow the story closely and post more about it as it develops.
Today’s Independent on Sunday carries this story with further details.