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.