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.
1. What are the Employment Equality Regulations 2003?
There are two sets of regulations which implement parts of the EU Equal Treatment Directive 2000: the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 which outlaw discrimination in employment and vocational training on the grounds of sexual orientation and religion or belief respectively.
2. What do they outlaw?
3. What grounds do they cover?
The Sexual Orientation Regulations apply to discrimination on grounds of orientation towards people of the same sex (lesbian and gay people), the opposite sex (heterosexual people) and the same and opposite sex (bisexual people). They cover discrimination on grounds of perceived as well as actual sexual orientation (i.e. assuming - correctly or incorrectly - that someone is lesbian, gay, heterosexual or bisexual). The regulations also cover association, i.e. being discriminated against on grounds of the sexual orientation of those with whom you associate (for example, friends and/or family).
The Religion or Belief Regulations apply to discrimination on grounds of religion, religious belief or similar philosophical belief. They cover discrimination on grounds of perceived as well as actual religion or belief (i.e. assuming - correctly or incorrectly - that someone has a particular religion or belief). The regulations also cover association, i.e. being discriminated against on grounds of the religion or belief of those with whom you associate (for example, friends and/or family)
4. What do they not cover?
The Sexual Orientation Regulations do not cover discrimination other than discrimination on grounds of people's (actual or perceived) sexual orientation.
The Religion or Belief Regulations do not protect against discrimination on grounds of belief not akin to a religion or similar philosophical belief, e.g. being a fanatical supporter of a particular football club, or being a supporter of a particular political party because of strongly held political views.
5. What aspects of employment do the regulations cover?
The regulations apply throughout the employment relationship - during the recruitment process, in the workplace, on dismissal and, in certain circumstances, after the employment has finished.
6. What aspects of vocational training do the regulations cover?
The regulations apply throughout the vocational training relationship - during the application process, in the place of training, and in certain circumstances after the vocational training has finished.
7. Who do they cover?
The regulations protect the rights of workers, those in or applying to be in vocational training and job applicants. They apply to all employers/businesses whatever their size and whether in the public, private or voluntary sectors. They apply to recruitment, terms and conditions, pay, promotion, transfers and dismissals. They protect office holders appointed by the Government and other office holders where they fall within the scope of the regulations (that is, if they are paid and are subject to some form of direction). The regulations were intended to cover clergy (and the guidance states that they do) but this is by no means clear and it remains to be seen what view the tribunals and courts will take in particular cases. What does seem clear is that the regulations will apply to at least some, clerical office holders. They will also apply to judicial offices, for example, including magistrates and Employment Tribunal members. They do not cover people who hold elected office, or an office that is not akin to a job e.g. an executor - appointed under a will.
The regulations also outlaw discrimination on grounds of sexual orientation and religion or belief by:
8. Where and when do they apply?
The regulations apply across Great Britain (England, Scotland and Wales). Separate regulations are being introduced in Northern Ireland.
The new rights come into force on 1 and 2 December 2003. A person can make a complaint about discrimination, harassment or victimisation on the grounds of sexual orientation committed on or after 1 December, and religion or belief on or after 2 December. In most cases, a complaint must be made to the employment tribunal, though in cases involving claims for breach of statutory duty in relation to institutions of further and higher education or relationships which have come to an end, proceedings must be brought in the county or sheriff court. Once an alleged act of discrimination has taken place, the time limit for bringing a claim in the employment tribunal is three months; in the county or sheriff court it is six months. Tribunals and courts can only extend those time limits in exceptional cases.
9. Why are the regulations being introduced?
Rights in new areas are being introduced because the governments in the EU believe that unfair treatment in relation to employment has such a damaging impact on people's lives. The new regulations are closely modelled on longstanding legislation against discrimination on grounds of race or gender.
Legislation will establish basic requirements in law so that people can no longer be denied jobs or be dismissed because of prejudice; so that harassment can be tackled promptly and effectively; and so that people have an equal chance of training and promotion, whatever their sexual orientation, religion or belief.
There is evidence to show that the benefits for organisations are considerable. The fact is that tackling discrimination helps to attract, motivate and retain staff. It helps employers make the best use of skills and experience and, according to the DTI, a more diverse workforce can lead to new ideas and access to wider markets. In short, this is not simply about social justice: fairness and better performance go hand in hand.
10. How do these regulations fit with other equality legislation?
There is existing legislation on other areas of equality.
The Equal Pay Act 1970
The Sex Discrimination Act 1975
The Race Relations Act 1976
The Disability Discrimination Act 1995
The Race Relations Amendment Act 2000
The Government's approach has been to ensure that, wherever, practicable, requirements are consistent across equality legislation. That will make it easier for everyone to understand and use the law. For example:
The Employment Equality Regulations are part of a package of new and amended equality legislation required by the 2000 Directive. The Government is also committed to:
11. Exceptions to the regulations
Section 7 of each set of regulations allows for exceptions for a genuine occupational requirement (GOR).
A GOR can be used where:
The provisions relating to contract workers, office holders, partnerships, qualification bodies, providers of vocational training, employment agencies and careers guidance etc all incorporate exemptions corresponding to those conferred by Regulation 7.
These exemptions mirror other discrimination prevention legislation. However, the exceptions go further and regulation 7(3) of each set of regulations makes provision for the use of a GOR specifically:
12. The religious organisation’s GOR
This relates to religious ethos under the new regulations which does not have to be a determining occupational requirement so an employer does not have to show that religion or belief is a determining (i.e. decisive) factor. However, the employer must still show that the religion or belief is a requirement, not just one of many relevant factors, and that it is proportionate in the particular case. Such organisations will be required to show a) that they have a 'religious ethos' (it will not be obvious to everyone), b) that the preservation of this ethos requires them to have posts that require a religious affiliation and c) the nature of the employment of some of these posts in their context makes a religious affiliation requirement proportionate in those cases.
13. Up to now the approach within many Anglican religious organisations has been to require a Christian, or in some cases a specifically Anglican affiliation, only where it is justified by the particular requirement of the post in question in order that the postholder is able to carry out his/her job effectively. It may have been the custom in some Anglican organisations, places of worship, parishes or dioceses to require all workers to be Christians or Anglicans. A blanket policy of this kind will no longer be sustainable under these regulations which require an employer to show that affiliations of religion or belief are proportionate in relation to the particular post in question.
14. This means that Church organisations, parishes, places of worship and dioceses who may not previously have thought through their own approach to these matters now need to do so. And those which have will also need to satisfy themselves that their approach is compatible with the new rights and methods of redress which have been created.
15. For places of worship, where the function and ethos is well known and recognised by the community, there may well be no need for a specific ‘ethos statement’. There may also be more scope there for arguing that a wider range of posts than in an administrative office (such as those at diocesan or national level) can justifiably carry a religious affiliation criterion. For example, some PCCs may conclude that it is proportionate to insist that a Christian should fill a particular secretarial or administrative post because it includes a local representational role for the Church with substantial contact with the public and a pastoral dimension.
16. Schools designated as having a religious character
Governments have always recognised the freedom of maintained schools with religious foundations to appoint heads and teaching staff who believe what the school believes. That has never been in dispute.
When parliament stated its intention to pass the Human Rights Act, it was recognised that there could be disputes about the appointment of teachers in Church schools and so the School Standards and Framework Act 1998 (SSFA) introduced the designation of maintained schools ‘with a religious character’. Subsequently an Order was made with a list of the 8,000 or so maintained Church of England and Roman Catholic schools (with a few others).
New Orders are made from time to time to include newly designated schools. Voluntary aided religious schools have the right under the Act to choose heads and teachers ‘whose religious opinions are in accordance with the tenets of the religion’ of the school and to dismiss someone whose conduct is ‘incompatible with the precepts, or with the upholding of the tenets, of the religion’ of the school. Voluntary controlled religious schools can lawfully discriminate when appointing a headteacher on the basis of the candidate’s fitness and ability to preserve and develop the religious tradition of the school.
The provisions of the SSFA 1998 are not undermined by the new regulations. Indeed, the Government has made further regulations to extend their provision to independent schools designated as having a religious character. In October 2003, such schools were making application to the Secretary of State for designation. Under the regulations, if the Secretary of State is satisfied that the school is conducted as a Church of England school, s/he must designate the school as having a Church of England character if the school has a trust deed or an instrument of government stating, for example, that education is offered in conformity with 'the rites, practices and doctrines' of the Church of England or the school has at least one governor appointed to represent the Church of England. It is not necessary for all the education in the school to be conducted according to Christian / Anglican tenets. If the school applies to be designated but the character of the school is not based on foundation documents or the constitution of the governing body, the Secretary of State has discretion and takes into account the nature of the education at the school and any representations made on behalf of the school by a religious body he considers appropriate.
Designation as a school having a religious character means that the governors in appointing a head and the head in appointing teaching staff will have the right in law to specify that they will only appoint - or that they would prefer to appoint - practising Anglicans or practising Christians - and to require that the person appointed will support the ethos of the school.
Designation as a Church of England school does not entitle the school to discriminate on religious grounds in appointing non-teaching staff, even where those staff have a significant pastoral role. In such cases all schools, designated or not, would have to justify the discrimination as being on the basis of a genuine occupational requirement having regard to the nature of the employment or the context in which it is carried out. It may, however, be much harder in practice to justify religious discrimination where the school has not been designated as having a religious character.
17. The point, however, is that every advertisement with a religious affiliation requirement is potentially challengeable, so parishes and dioceses need to think in a structured way before they impose one. The tribunals’ ability to review what is ‘proportionate’, coupled with the onus of proof on the respondent, means that unreasonable assertions and blanket policies will not withstand scrutiny.
18. Where an organisation is confident that there is a GOR for the post to be filled by a Christian or an Anglican, then it makes economic sense to advertise in specific Church related publications. However, where there is no GOR applied to a post, Church organisations must advertise as widely as possible or in a publication that is widely accessible to people from different backgrounds. To advertise solely in a Church publication for a post which does not have attached to it a GOR, may be seen as indirectly discriminate.
19. Attached to this paper are guidelines to help religious organisations, churches/places of worship and small Christian projects explore religious discrimination legislation and Christian ethos.
20. The sexual orientation GOR
This is one of the most sensitive areas of the regulations. In arguing for something akin to regulation 7(3) the Archbishops’ Council was not seeking freedom for the Church to discriminate on the grounds of sexual orientation. The Council made it clear to the Government that it was opposed to such discrimination. The aim was simply to ensure that churches and other faith groups continued to have the freedom to set standards in relation to sexual conduct without these being held to be discriminatory simply because they were defined in relation to marriage.
21. The primary issue is that of consistency. A tribunal is likely, for example, to uphold a discrimination case from an actively gay, lesbian or bi-sexual person denied a job, if the parish wishing to invoke section 7(3) in order that its particular ethos is maintained, knowingly employs heterosexual people who are in a sexual relationship outside marriage. It will be for each church, theological college trustee body, church voluntary organisation etc to think through its own approach and be clear how it would justify it if challenged in a particular case. It is particularly important, for example, that people avoid assumptions about people’s sexuality or lifestyles. It cannot be assumed that two people living together (regardless of gender) have a sexual relationship, or that someone is gay or that if someone is gay, s/he is active sexually. Finding out about a candidate's private life without making assumptions will be particularly sensitive. Where employers conclude that they need to adopt a restrictive approach they may be vulnerable if they are selective in asking some of those being considered for appointment, promotion, training etc, about their lifestyle, but not others.
22. Job descriptions and advertisements will need to clearly but sensitively state the position of the place of worship, parish or diocese on any requirement it imposes and, in the job description, how this complies with the exceptions in the regulations.
23. Either way, the use of the exceptions will be challengeable and have the potential to generate tribunal cases so careful consideration must be given to their use. We will be better able to determine how the regulations are to be interpreted once there is case law and precedent to follow.
Further information may be obtained from:
Advisory, Conciliation and Arbitration Service (ACAS)
Helpline: 08457 47 47 47
Textphone users: 08456 06 16 00
www.acas.org.uk
Su Morgan
HR Director
November 2003
Church House
Great Smith Street
Westminster
London SW1P 3NZ