Anti-discrimination employment regulations
1st January 2003
RESPONSE TO DRAFT ANTI-DISCRIMINATION EMPLOYMENT REGULATIONS
We wish to place on record our dissatisfaction with the religion and sexuality provisions in the Regulations, which we consider to be even less equitable than the wording in the consultation paper Towards Equality & Diversity. We have tabulated at the end of this letter specific recommendations about changes to the Regulations. Our major concerns and rationale start in the next paragraph, but in some cases it has not been possible or appropriate to follow these through with specific suggested changes.
We are aware that some religious organisations are also dissatisfied with these proposals, but for diametrically opposite reasons. Some of the least tolerant religious lobbyists will be unhappy with having, for example, to justify their wish to exclude staff on religious grounds, or dismiss them for what they perceive as "immorality". Clearly there is a balance to be struck, and in deciding where to strike it we would urge the Ministers to lean more strongly towards protecting the weak. Doubtless many religious employers will behave reasonably. On the other hand, there is, sadly, ample evidence - which we can supply if necessary - of powerful religious organisations that are clearly seeking almost unfettered rights to discriminate. Protection of workers from such excesses is vital.
Some of these less tolerant organisations are very well resourced and have ready, and probably free, access to prestigious lawyers to assist with both individual cases and establishing precedents beneficial to their aims. The absence of clear direction in the Regulations will result in recourse to the courts which is likely to result in complicated (and given the points made in the previous sentence, unhelpful) precedents. Those likely to suffer from this discrimination will generally not have the same monetary advantages and legal connections as those they wish to challenge. Their legal expenses will be increased by their lawyers having to refer to complicated and changing precedents, rather than to explicit statutory regulations. Large numbers of jobs involved; we estimate religious organisations and schools to employ between 100,000 and 200,000 staff, excluding teachers in maintained schools. Within this the large core of workers, social workers, nurses carers - and teachers (including those in non-maintained schools) are in the greatest need of protection. Our major concern is large numbers of workers being subject to religious/morality tests. We believe that the only staff in religious organisations that should be exempted are those whose primary purpose is proselytising.
A further indication of the scale of the problem is provided by the Church of Scotland. Its social work department is Scotland's largest social work employer, and all of its employees are required to 'know the Lord'. Such a religious requirement must exclude many capable staff, and it is all the more unjustifiable because such discrimination is funded from the public purse.
The case for the Regulations to provide more specific protection to the employees of religious organisations is strengthened by the inevitable (but regrettable from our perspective) substantial increase in the number of employees in religious organisations. Faith based welfare is in both Labour and Conservative manifestos, and will be accelerated by the Prime Minister's proposed reform of public services. This will result in many public sector functions carried out by staff almost entirely protected by equal opportunity policies being taken over by religious organisations that steadfastly oppose equal opportunities. Government Minister Paul Boateng has urged local authorities to be much more open to bids by religious organisations, but has pointedly avoided any reference to it being desirable - far less mandatory - to avoid any discrimination in employment or service provision.
We understand it to be the case in the Netherlands, that public funds are disbursed on the proviso that there will be no discrimination in employment or service delivery. We hope that Ministers will consider introducing a similar provision in this country.
Also unless 'ethos' is defined as current practice, the intolerant will simply seek to revert to Old Testament (or other 'Holy Book') literalism in defining the moral probity expected of their employees. According to the legal advice we have received, the courts are not likely to restrict such excesses.
We also have major concerns about the unwillingness of the consultation document to define a religious organisation. The campaign you have been subjected to pressing for Christian garages - unlikely as it might seem - just underlines the need for clear definitions to be included in the Regulations. Commercial and professional organisations should, in our view, be unable to claim religious organisation status. We have made specific suggestions about this below.
We repeat our call for the repeal of the provisions of the School Standards Act 1998 (and equivalent in Scotland) permitting discrimination in the employment of teachers in maintained religious schools. In large swathes of rural areas, church schools are the only employers of teachers and in some counties there are more CofE Primary schools than all the other primary schools - including RC - put together. Moreover there are simply not enough teachers of the requisite faith, as highlighted by the Times Educational Supplement 24 January 2002 (attached). This means that the statutes are giving a small pool of religious (mainly Christian) teachers privileged access to jobs, denying them to the best applicant where his/her lifestyle is deemed inappropriate or s/he is of the 'wrong' faith or none. Even where the latter are appointed, they will be at constant risk of summary dismissal on grounds of their lifestyle and religion, or lack of it.
Christian pressure groups have openly expressed their wish, despite the Regulations, to discriminate in employment on grounds of sexual activity outside marriage. While they seem to reserve the greatest bile for 'practising' homosexuals, heterosexual cohabitees seem potentially at similar risk of discrimination, and both should be protected in the Regulations. These should also specifically prohibit invasions of employees' privacy, and any related restriction of their freedom of expression, and family lives.
As marriage is restricted to heterosexual unions, it is especially unfair to permit discrimination in the pension rights as between married and same sex couples. As you know the new Commons pension scheme, to its credit, avoids such discrimination for the partners of those in the Commons scheme.
We call on the Government to amend the Regulations or failing that, the Guidelines-which we ask to be made statutory-as follows:
1. State for avoidance of doubt in the minds of the lay reader (whether or not necessary in law) that discrimination on grounds of non-belief is covered by the Regulations.
2. Introduce parameters to circumscribe what constitutes a religious organisation
a) We reiterate our request that the government needs to make it clear that the larger the organisation, the more convincing the case needs to be made for it to be regarded as a religious organisation. This would be in the interests of avoiding widespread discrimination in the labour market because the larger the organisation, the greater number of employees adverse affected by the discriminatory impact. The larger the organisation the less multi-tasking is necessary and therefore the more difficult such a test should be to satisfy.
Similarly, we believe that the more commercial an organisation, the more onerous the justification should be - to the point that the presumption should be that commercial organisations should not be regarded as religious organisations, unless in exceptional cases, such as a car dealership solely supplying to missionaries, and which prohibited the declaration of dividends. On the other hand we have considerable concerns that the failure to define a religious organisation, or what could not so be defined, could lead to, say, commercial car dealerships being permitted to classify themselves as religious organisations (a wholly unacceptable proposition that , nevertheless, the DTI has been under extraordinary pressure to permit). Unless such limits are imposed, we fear attempts by commercial enterprises, such as those manufacturing Mecca Cola, might succeed in gaining religious organisation exemption.
We also consider that the regulations should make clear that where public funding is involved the overwhelming presumption must be that discrimination be confined to Genuine Occupational Requirements
b) We recommend that it be a condition precedent for organisations claiming exemption as religious organisations, especially professional firms and practices, that they make their religious status clear in all their stationery, notice boards, advertisements, customer notices, procedures and other official documents. We consider it to be inequitable for them to be able to appear secular to their customers and prospective employees, while making covert claims that they are religious organisations. Even the Christian Institute agree with this (Sunday programme on Radio 4, 26 January 2002 at 7.40 a.m. per Colin Hart, Director, in debate with Keith Porteous Wood, the Society's Executive Director).
c) For the organisation to be regarded as religious, its formal aims in its deeds, memorandum and articles of association etc. need to spell this out clearly and its major activities need to demonstrate this, rather than - say a manifestly commercial motive. Tribunals should specifically be empowered to discover and admit historical documents to help establish whether recent changes have been made to alter the historic nature of an organisation in a bid to seek exemption from the regulations.
d) We also understand, for example, that some religious organisations are introducing prayers as a contractual commitment in even non-proselytising jobs, such as secretarial ones. We presume that this is in some cases an attempt at evasion by providing a spurious justification in court why jobs cannot be offered to those who do not/do not want to pray or are of a different religion or none. We consider the Regulations should require the courts to require the employer to demonstrate that such requirements were a necessary part of the job. We cannot see that a requirement to pray, for example, could reasonably be claimed to be necessary for non-proselytising jobs.
3. Limit the scope of jobs for which Genuine Occupational Requirements can be claimed, as follows: G O R exceptions should not apply in any case in which the core duties of the employment have no significant and necessary faith-based or confessional element. We propose an objective test by a comparison with a like or similar employment where the hypothetical comparator employer does not have an "ethos".
We cite as an example a metalwork teacher in a day school. As there is no such thing as Christian metalwork, the core duties, objectively determined, could not include any religious activity and the requirements of the core duties could not include the profession of any particular belief. We understand from the DTI that lawyers have advised them that the wording given below of Section 7(3) of the draft regulations is similar in effect to the wording of par 9.5 of the consultation paper Towards Equality and Diversity. Section 7(3) of the draft regulations
"(3) This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out-
(a) being of a particular religion or belief is a genuine occupational requirement for the job; and
(b) it is proportionate to apply that requirement in the particular case." c.f. Consultation paper Towards Equality and Diversity par 9.5: :"in the rare situation where they could show that it was an essentially defining feature of the job for the employee to be of a particular sexual orientation, religion or belief, or age." (The word 'limited' followed a few sentences later.)
We completely reject the claimed equivalence and ask for references to "proportionate" be replaced in 2(b) and 3(b) with "essential" or "necessary" and an indication that such exceptions should be "rare" and "limited". We also request that any contractual activity of a member of staff claimed to justify their GOC should be necessary and not able to be carried out by others. The onus must remain on the employers to justify discrimination.
3. Define 'ethos' pragmatically relative to local conditions. A major concern we have about ethos and religious organisations being encouraged to define it, is that the definition is likely to consist of aspirational statements drawn up by the high ranking conservatives, rather than reflecting the current reality and views of the majority of the followers. It is widely accepted, for example, that the stated doctrines and encyclicals (=ethos?) of the Roman Catholic Church as laid down by the Pope and other Vatican documents on hugely important matters of sexual ethics bear little resemblance to practice of lay Catholics in the UK, or even of the advice given by the vast majority of their priesthood here. Also, such written statements are issued infrequently, and if reviewed at all, only rarely. They will therefore frequently be out of date; the disparity between the statements and current practice are likely to be even more divergent.
We consider it essential that the Regulations make clear that courts or tribunals should interpret ethos as being current practice, to which if they are admissible at all, written statements are only to be regarded as prima facie evidence.
4. Specifically state that it constitutes discrimination against non-believers if they are, for example:
a) 'put upon' by being regularly having to take up the work pressure of their believing colleagues being absent for devotions, whether daily or for days of obligation (unless this is recognised with some proportionate reasonable reciprocal benefit)
b) denied the same degree of opportunity to take weekends (including Sunday) or bank holidays (including Easter) or additional unpaid holiday (sometimes offered by employers with the religious in mind)
c) denied a quiet room for contemplation when those of faith are offered prayer room facilities
5. Add a specifically prohibition on enquiries about or investigations (overt or covert) about an employee's or prospective employee's sexual relationships, activities or living arrangements.