Thinking Anglicans

the narrow scope of the "religious exemption"

In considering the Equality Bill and its applicability to the Church of England and other religious organisations, it may be worth noting how narrow is the scope of the existing Clause 7(3) in the current Employment Equality (Sexual Orientation) Regulations 2003. Clause 7(3) is the provision that provides an exemption to parts of the regulations when employment is for purposes of an organised religion.

What I mean by this is not the issue of to whom the exemption may apply, which has recently become a item of controversy, but the separate issue of to which parts of the regulations the exemption applies.

The corresponding wording of the Equality Bill in Schedule 9 is designed to replicate exactly the existing regulations. Here is the relevant wording of the current Regulation 7 (emphasis added):

7. – (1) In relation to discrimination falling within Regulation 3 (discrimination on grounds of sexual orientation) –

(a) regulation 6(1)(a) or (c) does not apply to any employment;

(b) regulation 6(2)(b) or (c) does not apply to promotion or transfer to, or training for, any employment; and

(c) regulation 6(2)(d) does not apply to dismissal from any employment,

where paragraph (2) or (3) applies.

These are the only clauses of the regulations to which clause 7(3) applies.

All other parts of the regulations apply even when employment is for purposes of an organised religion. This includes all other clauses within Regulation 6, and all other regulations, e.g. Regulation 4, Discrimination by way of victimisation, and Regulation 5, Harassment on grounds of sexual orientation. In connection with the latter, Regulation 6, Clause 3 reads:

(3) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to subject to harassment a person whom he employs or who has applied to him for employment.

Regulation 5 defines the term “harassment” for the purposes of these regulations.

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CharlottejohnSimon SarmientoCommentatorGerry Lynch Recent comment authors
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Tom
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I don’t understand; what’s the problem with there being a narrow scope for allowing discrimination on the grounds of religion? As far as I’m concerned the scope should be as narrow as possible, or even better there should be NO exemption for religious prejudice.

Father Ron Smith
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Father Ron Smith

The conservative lobby in the Churches could use their own interpretation of the word *harassment* They could merely refuse to employ, or retain in employment, anyone they suspected of being gay. That could be termed as being factual without employing the tactics of harassment. This could widen the parameters of intentional injustice.

Merseymike
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Merseymike

It was always intended to be narrow – essentially, paid clergy.

Gerry Lynch
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Gerry Lynch

The conservative lobby in the Churches could not use their own interpretation of the word “harrassment”. Any idea that employment tribunals will allow religious institutions to rewrite employment law to suit themselves should have been laid to rest with the Reaney case.

Simon Sarmiento
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Tom Let’s not confuse the terminology. The provision for discrimination on grounds of religion, e.g. Christians employing only Christians, is a quite separate matter. What this article is concerned with is discrimination on the grounds of sexual orientation. Within that, there is in UK law a particular exemption when, and only when, employment is for purposes of an organised religion. Merseymike You are quite right, but that is not the point I am discussing here. Ron and Gerry My point is, precisely, that harassment is clearly defined in these regulations, and is not covered by the exemption. In the Reaney… Read more »

Commentator
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Commentator

Simon:
Is your point that both the Archbishop of Canterbury and the Bishop of Durham in their recent public pronouncements COULD be said to be harassing Clergy already in employment? The public statements about their status within Civil Partnerships being incompatible with a ‘representative’ function surely falls within this area of employment law.

It is also the case that the recently introduced Clergy Discipline Measure weakens the Church of England’s contention that Clergy are ‘self employed’.

Simon Sarmiento
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Commentator:

You mean are the bishops (or anyone else for that matter) “creating an intimidating, hostile, degrading, humiliating or offensive environment” by their public statements?

It’s certainly a possibility to consider.

john
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john

Prosecute them?

That would be great! Of course, they could pose as martyrs but the gains would surely outweigh the losses. Even better, they might have to issue full public retractions.

Charlotte
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Charlotte

Simon, Commentator: +Durham has certainly been full of threats and intimidation lately…