IntroductionDraft Regulations (under the European Communities Act 1972) designed to prevent discrimination in employment on the grounds of race, disability, sexual orientation, religion and belief, were laid before Parliament on 8th May. They lie on the table for 40 days, during which they are scrutinised by a Select Committee, after which they must be approved by a resolution of each House of Parliament.
The genesis of these Regulations was Article 13 of the Treaty of Amsterdam, which states that, "Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."
In fulfilment of this the EU institutions produced two framework Directives. Directive 565 prohibited discrimination in employment on the grounds of age, disability, sexual orientation, religion or belief. Directive 566 prohibited discrimination on the grounds of racial or ethnic origin in employment, the provision of goods and services and social protection. The former was known initially as the Equal Treatment Directive and latterly as the Employment Directive. It is this that is the central focus of this paper because it is the Directive that addresses religious discrimination but this is not to imply that other forms of discrimination are of less interest to Evangelicals.
The Employment Directive was approved by the EU Council of Ministers on 27th November 2000. Member States were required to "Adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 2nd December 2003". The Regulations laid before Parliament on 8th May are the fulfilment of this obligation.
Religion And The Employment DirectiveThe prohibition of discrimination is one expression of the contemporary concern for human rights. For the most part, the human rights that most concern politicians are those of individuals. However, religion is not an exclusively individualistic matter. In most religions, believers congregate in faith-based organisations for worship, instruction, mission and other activities. To ignore this in the implementation of the anti-discrimination legislation could lead to more religious discrimination, not less. That would happen if religious organisations were not allowed to recruit from their own faith communities in order to preserve their distinctive religious ethos, traditions and identities.
Thus the Employment Directive stated that, "a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos." (from Article 4 paragraph 2)
In addition to this provision, religious organisations were given the right "to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos". (ibid)
It is worth noting that the application of the genuine occupational requirement (GOR) does not give religious organisations carte blanche to discriminate. Practising a difference of treatment has to be justified as genuine, legitimate and proportionate. In relation to posts involving leadership, policy making, representation and instruction in the faith, this should not be difficult. In relation to posts requiring technical or manual skills such as caretaker, cook or bookkeeper, it might be difficult to insist that anyone appointed must also belong to the faith.
Draft RegulationsThe Regulations laid before Parliament on 8th May were the vehicles chosen to incorporate the European framework Directive into UK law. They are the result of a lengthy consultation process and much lobbying.
The principal focus for this lobbying was the perceived fault line running through the first draft of the legislation between the religion and sexual orientation provisions. Some religious organisations wanted to distinguish between sexual orientation and practice and to retain the right not to employ people engaging in sexual activities incompatible with the teaching of their Scriptures. ‘Gay’ and secularist lobby groups sought to prevent this.
The contest was sharpened by a Ministerial statement that the religion/belief provisions "will not allow a religious organisation to justify dismissal of an employee simply because of his or her orientation". (Barbara Roche, TUC Conference, July 2002) The inference was that the new legislation would create a hierarchy of rights in which the rights related to sexual orientation would take precedence over rights related to religion and belief, though the Minister said that this was not the Government’s intention.
For the most part the Religion Regulations laid before Parliament closely follow the Directive. Employers must not discriminate against employees on the grounds of their religion or beliefs except in organisations with a religious ethos, in relation to posts genuinely requiring the incumbent to be of a specific religion or belief, in order to preserve that ethos.
The right to require an employee to act in good faith and with loyalty to the organisation’s ethos does not appear on the face of the Regulation. However, the DTI lawyers argue that "existing employment law already implies into a contract of employment a duty of trust and confidence on the part of both the employer and the employee. So an employee acting in bad faith or without loyalty to the employer’s ethos would be in breach of this duty" (Private correspondence with DTI).
The most significant development between the first and final draft of the Regulations is how the fault line between the religion and sexual orientation Regulations has been resolved. The final draft of the Sexual Orientation Regulation 7 includes a new paragraph 3:
(3) This paragraph applies where- the employment is for purposes of an organised religion; the employer applies a requirement related to sexual orientation –
- so as to comply with the doctrines of the religion, or 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;
and either-
- the person to whom the requirement is applied does not meet it,
- or the employer is not satisfied, and in all circumstances it is reasonable for him not to be satisfied, that the person meets it.
Another development is the application of GOR to institutions of further and higher education in relation to both religion and sexual orientation. It is generally unlawful for an educational institution to refuse to admit someone as a student on the grounds of his or her religion or sexual orientation. However, this provision will not apply "if the discrimination only concerns training which would fit a person for employment which, by virtue of regulation 7 (exception for genuine occupational requirement), the employer could lawfully refuse to offer the person in question." Bible Colleges and Seminaries will welcome this exception.
ConclusionsThe draft Regulations should give the majority of Christians (and peoples of other faiths), employed in non-religious organisations, a measure of protection from discrimination on the grounds of their religion and beliefs. Precisely how much protection they give will become clear by cases heard before Employment Tribunals.
The Regulations allow religious organisations a measure of freedom to recruit selectively from their faith community in order to preserve their religious ethos but there are two qualifications. First, this freedom presupposes that these organisations have an ethos that reflects what they purport to believe. Again case law will reveal how far this freedom can be stretched but it might be unwise to expect Employment Tribunals to have a well-developed understanding of religious organisations and what is an appropriate ethos for them to have. It could take time for that to be acquired.
It is crucial that Christian organisations monitor and maintain their ethos. You may believe that it reflects your faith and biblical values but have you ever checked whether this is how others see the organisation? A group of experienced human resources managers working in Christian organisations have put together a management tool to help you check. (For information contact sjones@eauk.org)
The exceptional treatment of religion and belief will be unpopular with politicians and groups campaigning on behalf of gay and lesbian people. The wisdom and sensitivity with which the religion provisions are applied could determine how well they work and how long they survive pressures to remove them.
If religious organisations seek to apply a GOR to every post in order to exclude unbelievers at all costs, they will be in breach of the Regulations and could find themselves taken to a Tribunal. Smaller organisations in which an individual employee could significantly influence the ethos and all employees interact with the public, could find it easier to justify such a policy but larger ones will not.
In that sense, this legislation does impinge on the religious liberty of larger faith-based organisations. The challenge facing them is to sustain such a clear and consistent ethos that non-believing employees come to share the faith, without being pressured to do so (which would constitute harassment).
Those responsible for drafting this legislation have worked hard to understand the peculiar needs of the faith communities and have worked to the highest professional standards in delivering an outcome that helps religious organisations more than many expected they would. The best response is to intelligently apply the Regulations with grace and gratitude.
