Equality Bill
Schedule 9 — Work: exceptions
Part 1 — Occupational requirements

Religious requirements relating to sex, marriage etc., sexual orientation
Clause 2
(1) A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to employment a requirement to which sub- paragraph (4) applies if A shows that—
(a) the employment is for the purposes of an organised religion,
(b) the application of the requirement engages the compliance or non- conflict principle, and
(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

(2) The provisions are—
(a) section 36(1)(a) or (c) or (2)(b) or (c);
(b) section 46(3)(a) or (c) or (6)(b) or (c);
(c) section 47(3)(a) or (c) or (6)(b) or (c);
(d) section 48(1).

(3) A person does not contravene section 50(1) or (2)(a) or (b) by applying in relation to a relevant qualification (within the meaning of that section) a requirement to which sub-paragraph (4) applies if the person shows that—
(a) the qualification is for the purposes of employment mentioned in sub-paragraph (1)(a), and
(b) the application of the requirement engages the compliance or non-conflict principle.

(4) This sub-paragraph applies to—
(a) a requirement to be of a particular sex;
(b) a requirement not to be a transsexual person;
(c) a requirement not to be married or a civil partner;
(d) a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
(e) a requirement relating to circumstances in which a marriage or civil partnership came to an end;
(f) a requirement related to sexual orientation.

(5) The application of a requirement engages the compliance principle if the application is a proportionate means of complying with the doctrines of the religion.

(6) The application of a requirement engages the non-conflict principle if, because of the nature or context of the work, the application is a proportionate means of avoiding conflict with the strongly held religious convictions of a significant number of the religion’s followers.

(7) A reference to employment includes a reference to an appointment to a personal or public office.

(8) Employment is for the purposes of an organised religion only if the employment wholly or mainly involves—
(a) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or
(b) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).

(9) In the case of a requirement within sub-paragraph (4)(a), sub-paragraph (1) has effect as if in paragraph (c) the words from “(or” to the end were omitted.

Explanatory Notes on Clause 2

Religious requirements relating to sex, marriage etc., sexual orientation: paragraph 2

Effect
743. Where employment is for purposes of an organised religion, this paragraph allows the employer to apply a requirement to be of a particular sex, not to be a transsexual person or make a requirement related to the employee’s marriage, civil partnership or sexual orientation, but only if –
• appointing a person who meets the requirement in question is a proportionate way of complying with the doctrines of the religion; or,
• because of the nature or context of the employment, employing a person who does not meet the requirement would conflict with a significant number of the religion’s followers’ strongly held religious convictions.

744. The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. The application of the requirement must be a proportionate way of complying with the doctrines of the religion or of avoiding such a conflict.

745. Employment can only be classified as for purposes of an organised religion if the employment wholly or mainly involves promoting or explaining the doctrines of the religion or leading or assisting in the observation of religious practices or ceremonies.

746. The requirement can also be applied by a qualifications body in relation to a relevant qualification (within the meaning of clause 50), if employment is for the purposes of an
organised religion and either of the above criteria are met and the employment is for the purposes of organised religion as defined above.

Background
747. This specific exception applies to a very narrow range of circumstances. It replaces and harmonises exceptions contained in current discrimination law but makes it clear that the
employment in question must be closely related to the religious purposes of the organisation. Applying the requirement must be a proportionate way of meeting either of the criteria described in paragraph 742 above.

Example
• This exception would apply to a requirement that a Catholic priest be a man.
• This exception would not apply to a requirement that a church youth worker or accountant be heterosexual.