On 8 May, a letter was sent to members of the Council, members of the House of Bishops, and Diocesan Secretaries, reporting what had been achieved by Church House staff in their negotiations with the government about the Employment Equality Regulations. The full text of this letter appears below.
Analysis real soon now 🙂
Members of the Archbishops’ Council
Members of the House of Bishops
Diocesan Secretaries
8 May 2003
EMPLOYMENT EQUALITY REGULATIONS
The Government is today publishing regulations to implement the European Equal Treatment in Employment and Occupation Directive agreed in 2000. The expectation is that the regulations will be debated and voted on in each House of Parliament before the summer recess. There will be no ability to move amendments. Provided they are approved, the regulations will come into force on 1 December. The Government will be producing further guidance on the regulations in due course and we shall look to see whether there is any material we might usefully produce from here to supplement that. The purpose of this note is to provide an initial explanation of what the regulations will mean for us and what line we are taking publicly on them.
Background
The Directive required EU governments to outlaw discrimination in employment on grounds of sexual orientation, religious belief, disability and age. The deadline for implementation is December this year in respect of sexual orientation and religion and December 2006 in relation to disability and age. Under the separate Race Directive, governments also have to introduce adequate protection against racial discrimination in employment by July 2003, though given the extensive anti-discrimination legislation already in force in this country, the need for amendment is very limited.
The Government published draft regulations last October. The Archbishops’ Council’s response of 23 January voiced the Church of England’s ‘strong support for creating a legal framework to safeguard basic rights and promote dignity, equality and respect for all members of society … 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.’
The Archbishops’ Council identified five concerns about the initial draft of the regulations. Subsequently we also leant support to a point raised by the Catholic Bishops’ Conference about the impact of the religious discrimination regulations on the admission policies of Catholic sixth form colleges.
Over the past few months we have, in partnership with our Roman Catholic colleagues, had a series of exchanges and meetings with DTI officials. In addition the Bishop of Southwark together with Archbishops Vincent Nichols and Peter Smith met the Equality Minister, Barbara Roche, last week.
Overview
Our assessment of the progress we have made is summed up in the on the record statement by the Bishop of Southwark which our Communications Unit are using in response to enquiries. Others approached for public comment may want to draw on this:
The regulations which the Government has published today represent a considerable improvement on last autumn’s consultation document. The Government has listened to representations from the Churches and we welcome that. Nevertheless we retain significant concerns over the amount of litigation which the regulations are likely to generate and regret that the Government has not introduced as much clarity in them as we had sought. The proper legal protection of individual rights, which we support, needs to be consistent with the rights of the Churches and other faith groups to religious freedom. That must include the ability to set our own requirements about belief and conduct in respect of those who serve and represent us. We shall be closely monitoring the implementation of the regulations.
Detail
The position we have reached on the six points raised with the Government is as follows.
As with other anti-discrimination legislation, the Employment Equality (Religion or Belief) Regulations permit discrimination in certain circumstances. In particular, where an employer has an ethos based on religion or belief discrimination would be lawful where, ‘having regard to that ethos and to the nature of the employment or the context in which it is carried out, being of a particular religion or belief is a genuine occupational requirement for the job, and it is proportionate to apply that requirement in the particular case’. This provision was already in the draft regulations published last autumn in relation to recruitment and promotion but not in relation to dismissal, even where someone had abandoned their religious allegiance. The Government has accepted our representations on this point and amended the Regulations so that dismissal is now possible.
We also pressed the Government to be more precise about when an organisation can be said to have ‘an ethos based on religion or belief’ and to stay closer to the wording of the Directive in defining what constitutes harassment (whether in relation to religious belief or sexual orientation). The Government resisted our representations on these two points. Much, therefore, turns on how the courts interpret these provisions in practice.
An additional point in relation to religious discrimination concerns the ability of faith-based sixth form colleges to take religious affiliation into account in their selection policies. The Regulations do not affect schools admission policies generally, so the existing DfES approved policy framework on faith schools remains in force.
The Regulations do, however, outlaw religious discrimination in relation to the provision of vocational training except where that is in preparation for posts which themselves carry a genuine occupational requirement (eg training Catholics to teach in Catholic Church schools). Although sixth form colleges are, in law, schools, they are also regarded as providers of vocational training. The effect of the Regulations, therefore, is that schools, including those with sixth forms, will be able to continue with their present admissions policies, which take religious affiliation into account in certain circumstances. But sixth form colleges will no longer be able to do so. There are a number of Catholic (but no Anglican) sixth form colleges.
We have agreed with our Catholic colleagues that this is an anomaly and supported their efforts to secure a change in the Regulations. The Government has, however, resisted this. The Catholic bishops are likely to continue to protest about this.
We had raised a small point in relation to a proposed amendment to the exemption for charities in section 34 of the Race Relations Act 1976. We feared that this might restrict the work of religious charities focused on a particular ethnic group (for example the Church’s Ministry among the Jews). In the light of our representations the Government has adopted a different drafting approach which, we believe, meets the nub of our concerns.
The final and most difficult issue has been the implications of the draft Sexual Orientation Regulations for ourselves and other Churches and faith groups. The nub of the difficulty here is that the courts are most unlikely to make any clear distinction between orientation and behaviour. There was therefore a substantial risk that the Regulations would encroach on the freedom which all religious organisations need to determine their own conduct rules in relation to those who work for and represent them. Our concerns were shared by a number of other Churches and by the Inter-Faith Network.
The Government has moved to meet these concerns, though by adopting a different drafting approach from the one which we advocated. The Sexual Orientation Regulations now include a provision in relation to employment or professional or trade qualification ‘for purposes of an organised religion’. In such circumstances it will continue to be lawful to apply a requirement related to sexual orientation – (i) so as to comply with the doctrines of the religion, or (ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers’.
We have had long and difficult discussions with government officials over the phrase ‘for purposes of an organised religion’. It will clearly provide a much greater degree of protection in relation to Church posts and officers than the earlier draft of the Regulations. But it remains to be seen how precisely the courts will interpret it, for example in relation to Church schools and other Christian organisations.
It is because of this lack of clarity and the risk of contentious and costly litigation, that our welcome for the changes which the Government has made is somewhat qualified.
WILLIAM FITTALL