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PREVIOUS SPEAKERS:

Dr. Lucy Vickers, Director,
Centre for Legal Research and Policy Studies
Oxford Brookes University

ILS Annual Conference 2003

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Title: "Tolerance and intolerance: Religion, Sexual Orientation and Equality "

Employment Equality (Sexual Orientation) Regulations 2003 SI No.1661

Attempts to argue that this is already covered by existing sex discrimination legislation, have been consistently unsuccessful, most lately with Pearce  in the House of Lords. The statements in Pearce that the new Regulations would provide a remedy in future are only partially true: the Regulations only apply to discrimination in employment. A decision that sex discrimination included sexual orientation discrimination would have been more far-reaching.

The Employment Equality (Sexual Orientation) Regulations implement the EC General Framework Directive 2000/78/EC and come into force on 1^st December 2003

• Definition Of Sexual Orientation

1. persons of the same sex,
2. persons of the opposite sex, or
3. persons of the same sex and of the opposite sex.

Other sexual orientations, such as an orientation towards children, are not covered.

The regulations only refer to sexual orientation and not sexual practice. It remains arguable, therefore that a religious organisation which refuses to employ a sexually active homosexual person, but who would be prepared to employ a celibate homosexual person would not be discriminating on grounds of sexual orientation. However, such a requirement could be indirectly discriminatory if the same employer would be prepared to employ sexually active married heterosexuals, as the marriage requirement is impossible for a gay person to comply with.

• Who Is Covered?

The regulations cover employees, contract workers (Regulation 8), office holders (Regulation 10), police (Regulation 11), barristers (Regulation 12), partnerships (Regulation 14).

• Discrimination in the Employment Field

Discrimination occurs where the employer discriminates in the arrangements he makes for the purpose of determining to whom he should offer employment; in the terms on which he offers that person employment; or by refusing to offer, or deliberately not offering, him employment; promotion, dismissal, or other detriment. (Regulation 6)

• Exception for benefits linked to marital status

The Framework Directive is "without prejudice to national laws on marital status and the benefits dependent thereon" (Directive 2000/78, recital 22). Thus benefits that are limited to those who are married are not unlawful, (Regulation 25) even though such a limitation will discriminate indirectly against lesbian and gay employees.

• Direct Discrimination

An employer who refuses to employ an applicant because of her sexual orientation, perceived or otherwise, would be acting unlawfully under regulations 3(1)(a) and 6, as would an employer who allows travel concessions to heterosexual couples, but refuses them to homosexual couples.

• Indirect discrimination

1. which puts or would put persons of the same sexual orientation as B at a particular disadvantage when compared with other persons,
2. which puts B at that disadvantage, and
3. which A cannot show to be a proportionate means of achieving a legitimate aim.

There wording reflects that of the Framework Directive s 1(2) of the Sex Discrimination Act 1975, introduced on 12 October 2001. It means that discriminatory preferences are covered. Moreover, the use of the term putting persons ‘at a particular disadvantage’ is moves the emphasis away from a statistically significant difference.

• Harassment on grounds of sexual orientation

1. violating B’s dignity; or
2. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Sub – para (2) covers the case where a very sensitive person takes unreasonable offence, and provides that this would not be harassment.

However, the regulations do not require that there be an intent to violate dignity or to create a hostile or intimidating environment, only that this results. It is possible, according to this definition that if a gay employee objects to persistent verbal comments or remarks then he could make a formal complaint on the basis that a hostile environment has been created. The possible difficulties this may raise, particularly in its interaction with the Religion and Belief Regulations will be considered below.

• Genuine Occupational Requirements

Regulation 7 provides that there is no discrimination where, having regard to the nature of the employment or the context in which it is carried out, being of a particular sexual orientation is a genuine and determining occupational requirement and it is proportionate to apply that requirement in the particular case. Examples in relation to sexual orientation are likely to be rare, but employment as a counsellor for gay and lesbian young people, would probably be covered by the exception.

The regulations contain a further exception, included at the last minute:

Note: a parallel provision exists in section 19 SDA.

The new regulation only applies to the appointment of religious personnel for purposes of an organised religion. It will cover the appointment of Priests, Immams etc., both where the religion prohibits homosexual practice, and where it religion itself tolerates it, but may within the faith do not. (For example, the Anglican Church tolerates homosexuality, but many within the church do not.)

Concern was expressed that the exception may allow a wide range or religious organisations to discriminate against gays and lesbians, as it could cover all staff of a religious organisation. This was one of the reasons for the reservations about the Regulations expressed by the Joint Committee on Statutory Instruments when the Regulations were debated in June 2003. However, a distinction needs to be made between the purposes of a religion, per se, and the purposes of a religious organisation. The wording is clearly for the purposes of the religion. It would seem unlikely that this will be interpreted to include all types of employment by a religious organisation. After all, it is difficult to argue that the employment of nursing staff by a religious hospice is ‘for the purposes of a religion’. It is, rather, for the purposes of the religious hospice, or more broadly perhaps for the purposes of health care.

Regulation 7(3) is also wider than regulation 7(2) in another sense. The occupational requirement under 7(3) can be ‘related to homosexuality’ rather than ‘being of a particular sexual orientation’. Thus an Anglican church could refuse to appoint a married, heterosexual vicar because of his liberal attitude to homosexuality.

Direct discrimination on grounds of sexual orientation by any other employer in the cause of creating a religiously homogenous workplace will be unlawful.

• Exceptions for positive action

Regulation 30 provides that the positive action may be taken when it reasonably appears to the person [taking the action] that it prevents or compensates for disadvantages linked to sexual orientation among the relevant section of people to whom the positive action relates.

• Good Employment Practice

• Employers will need to check standard terms and conditions of employment, particularly those which confer benefits on staff and their family, such as occupational pension schemes. It will be unlawful provide benefits to both married and non-married partners of employees, if the scheme excludes non-married partners of the same sex.

• Employers should ensure that equal opportunities policies are extended to cover sexual orientation, if they do not already do so.

• Promotion decisions should be transparent, in line with good practice, and based on factors which clearly relate to competence.

Employment Equality (Religion and Belief) Regulations 2003 SI No.1660

Discrimination on grounds of religion or belief has not been covered by UK law, unless indirect race discrimination (J.H. Walker v Hussain [1996] IRLR 11) or where religious group is also a separate ethnic group (Mandla v Lee [1983] IRLR 209)

The Employment Equality (Religion and Belief) Regulations 2003 SI No.1660 implement the EC General Framework Directive 2000/78/EC and come into force on 2nd December 2003.

• Meaning of Religion or Belief

Regulation 2 defines religion or belief as ‘any religion, religious belief, or similar philosophical belief’. The terms religion and belief are left undefined, and tribunals will have to develop principles for determining the scope of these terms as other courts have before them. Guidance may be taken from case law on charities in domestic case law, and the case law on Article 9 of the ECHR. This case law takes a fairly traditional, and largely theistic view of what constitutes a religion.

It is clear that political beliefs are not covered. Non-religious beliefs (such as humanism) are bound to be covered, although their adherents stress that they are not ‘similar’ to religious beliefs.

• Meaning of Direct Discrimination

Regulation 3 defines direct discrimination as less favourable treatment ‘on grounds of [the employee’s] religion or belief’.

This covers not only less favourable treatment on the grounds of a person’s actual religion or belief, but also treatment based on the discriminator’s perception of a person’s religion, or on a person’s association with people of a particular religion.

Examples:

• Refusal to employ, train, or promote staff on the basis of religion.

• Discrimination against someone married to a member of a religious group.

• Employment decisions based on stereotypical views of how those of a particular religion will behave.

NB a religious employer who refuses to employ gay employees because of his own religious views discriminates unlawfully under the Sexual Orientation Regulations.

• Meaning of indirect discrimination

Indirect discrimination covers the application of a provision, criterion or practice which is applied equally to those not of the same religion, but which puts persons of the religion in question at a disadvantage compared to others, and which cannot be shown to be a proportionate means of achieving a legitimate aim.

As for sexual orientation, indirectly discriminatory preferences will be covered by the Regulations as well as absolute bars to employment.

Examples:

• Dress code requirements: these will need to be addressed; uniforms which do not allow for religiously motivated modes of dress may be indirectly discriminatory.

• Religious days of rest: employers will need to be flexible where possible, as any lack of flexibility will need to be justified.

Clashes between rights

The indirect discrimination provisions have to deal with some of the clashes of interest which can arise between religious rights and other interests such as rights to sexual equality. For example, how should an employer deal with a religious applicant for work in secular workplace who claims that on grounds of religion he cannot share office space with women? Refusal of employment would be indirect discrimination: the employer imposes a requirement of respect for different genders; the applicant may be put at a disadvantage, but the requirement serves the legitimate aim of promoting sexual equality and to apply such a requirement would normally be viewed as proportionate.

• Harassment on grounds of religion or belief

This means that an over-sensitive complainant who takes offence unreasonably at a perfectly innocent comment would probably not be considered as having been harassed.

The rules on harassment may well give rise to some practical problems:

• Whilst some common understanding of racial and sexual harassment issues has developed over time, enabling tribunals to assess what can reasonably be expected to create a hostile or intimidating environment, this may not be the case for religious or sexual orientation harassment. Tribunals may well be less confident in assessing whether conduct offends religious susceptibilities. Without expert knowledge or experience, it may be hard to determine whether an employee is being unduly sensitive in his perception on the level of offense caused by particular conduct.

• Taken together with the parallel protection against harassment on grounds of sexual orientation, the area could become complex in practice. Does a religious employee who seeks to explain to a gay colleague his understanding of a biblical approach to homosexuality harass the gay colleague? Is a religious employee who finds open discussion of sexual matters offensive being harassed if colleagues continue such discussions in his or her hearing?

• If employers decide to prevent any claims by prohibiting religious speech at work, are they interfering with the religious employee’s right to free expression?

Employer liability:

As with other grounds of discrimination, the employer is deemed liable for the acts of his employees done in the course of employment, whether or not the employer knew or approved of them. Employer has a defence if he can show that he took such steps as were reasonably practicable to prevent the employee from doing the discriminatory act. (Regulation 22)

• Discrimination in employment or other occupation:

Regulation 6 provides that it is unlawful to discriminate on grounds of religion or belief in the arrangements made for determining who to employ; in the terms of employment; and by refusing to offer employment, in promotion, by dismissal or subjection to other detriment.

The regulations cover other types of worker, contract workers (reg. 8) office holders, (reg. 10) police (reg. 11) barristers (reg. 13) partnerships (reg. 14).

Note: All these types of worker are subject to the Regulation 7 exception except the police and barristers.

• Exception for genuine occupational requirement

Regulation  7 contains the exception for genuine occupational requirements. In the draft version of the regulations, the GOR exception did not apply to dismissal. This is corrected in the final version.

Regulation 7 creates a two tier genuine occupational requirement. In this respect it varies from the usual genuine occupational requirements in other discrimination statutes.

The first GOR relates to genuine and determining occupational requirements to be of a particular religion – for example religious leaders and teachers. The second creates a rather broader exception for organisations with a religious ethos.

The standard exception:

Under this provision, religious groups can appoint priests, leaders and religious teachers who share the group’s religion. For example, an organisation undertaking Christian youth work could refuse to employ non-Christian youth workers.

The exception in Clause 7(2) is narrow, and not really controversial. Similar exceptions apply in relation to all the heads of discrimination. There has to be a very clear connection between the work to be done and the characteristics required: the occupational requirement must be genuine and determining, and it must be proportionate in the particular case involved. It will be necessary to consider the requirements of the job very closely before being able to use the exception.

The special religious ethos organisation exception

1. being of a particular religion or belief is a genuine occupational requirement for the job;
2. it is proportionate to apply that requirement in the particular case; …

Regulation 7(3) is more controversial and does not have a parallel in other discrimination statutes. The proportionality requirement remains, and regard has to be had to the nature of the job, but the occupational requirement does not have to be determining.

In relation to religious employers it may be possible to argue that a workplace is, for example, Muslim or Hindu, because its staff are all from the same religion, and it operates according to a religious ethos. Such a religious employer would be able to require that all staff share the religion, even categories of staff such as secretarial or catering staff for whom religion is not a determining requirement. This type of employer does currently exist, for example, Christian medical practices which run their workplaces according to Christian principles.

Although Regulation 7(3) does allow greater latitude in maintaining the religious ethos of an organisation, it does not create total freedom to religious employers. Any employer seeking to use the exception must show more than a mere preference for religious employees, and it will be difficult to argue that all staff should share the religion. The employer will still need to show that religion is a genuine occupational requirement. For example, in a medical practice it may be that one could require that the partners be Muslim, but it would be more difficult to argue this in relation to support staff. An understanding of the faith, and sympathy for its practice could be required, but it will be difficult to show that a shared faith is necessary.

• Clashes of rights

In some cases conserving the religious ethos of their workplace will involve discrimination against other groups, in particular gay and lesbian staff. For example, depending on the type of Christianity adhered to, a Christian medical partnership may indirectly discriminate against gay staff if it requires staff to share its Christian belief.

This will be discriminatory under the Employment Equality (Sexual Orientation) Regulations, either directly or indirectly, according to the factual circumstances. Refusal to employ a gay applicant on religious grounds would be direct discrimination on grounds of sexual orientation. Setting religious observance as a preference in making an appointment in order to maintain the religious ethos of the organisation (legal under Regulation 7(3) of the Religion Regulations), may indirectly discriminate on grounds of sexual orientation if the religion in question is hostile to homosexuality (unless the employment is for purposes of an organised religion).

Can this indirect discrimination be justified?

One would need to show that the preservation of religious ethos for the employer is a legitimate aim, but would it ever be proportionate? One might want to consider here the size of the employer, whether there is other work available for the employee, whether the employer is providing services to the public etc.

• Exceptions for positive action

Regulation 25 allows actions which give those of a particular religion or belief access to facilities for training which would help fit them for particular work; or which encourage them to take advantage of opportunities for doing particular work, where it reasonably appears that such actions will prevent or compensate for disadvantages linked to religion or belief suffered by persons of that religion or belief.

• Issues for Good Employment Practice:

• Dress code requirements:

• Religious Days of Rest:

• Clear policies as regards harassment:

Conclusion: Tolerance and Intolerance

Under the two sets of Regulations, discrimination by religious employers, against those of other faiths or none, is accepted to a limited extent: religious ethos organisations can discriminate even where the job is not determined by its religious character. But, the maintenance of a religious ethos is not lawful if it results in direct discrimination on grounds of sex, sexual orientation or any other unlawful ground. Moreover, where it results in indirect discrimination it will only be accepted in very rare cases, where it can be shown to be a proportionate means of achieving a legitimate aim. In effect, discrimination by religious groups is tolerated to an extent within the Regulations. However, that tolerance is limited once religious groups fail to tolerate others.

Lucy Vickers

Oxford Brookes University

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