Hereford – Did the Tribunal misread the 2003 Act?
It’s been pointed out to me that the Employment Tribunal judgement on Reaney vs. the Hereford DBF contains either a typo OR a misreading of the 2003 Employment Equality (Sexual Orientation) Regulations. Let me explain.
In section 69 (no jokes now please) of their judgement the tribunal reference regulation 7(3) of the 2003 Regulations and they write the following:
Regulation 7 is headed ‘Exception for General Occupational Requirement etc”. Regulation 7(3) says:
This paragraph applies where –
(a) The employment is for the purposes of an organised religion;
(b) the employer applies a requirement to sexual orientation –
(i) so as to comply with the doctrines of the religion or
(ii) because of the nature of 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
(i) the person to whom that requirement is applied does not meet it, or
(ii) the employer is not satisfied and in all the
circumstances it is reasonable for him not to be satisfied, that that person meets it”,
Got that? The problem is, the actual regulations read:
(3) This paragraph applies where –
(a) the employment is for purposes of an organised religion;
(b) the employer applies 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; and
Did you see the difference? Section 7 (3) b allows an exemption where “the employer applies a requirement related to sexual orientation” but the tribunal reported it as “the employer applies a requirement to sexual orientation“. The difference is crucial. The way the law is framed allows a religious employer to make a discrimination based upon something related to a particular sexual orientation – i.e. it could demand something more or less exacting from someone who was a heterosexual as opposed to a homosexual. The way that the Tribunal reported 7 (3) b makes is read as though a religious organisation could discriminate if a job required one to be heterosexual or homosexual – hardly a requirement for a youuth worker job one would think.
Why is this important? Well sections 97 and 98 outline the reasons why the Tribunal found Hereford++ guilty of directly discriminating. They write:
97. In considering the question of why the Claimant was not appointed to the post of Diocesan Youth Officer, we consider that the regulations do not make a distinction between the mere fact of being gay and expressing that sexual orientation in behaviour. We accept the Claimant’s submissions that the regulations must be read consistently with Convention rights, as Richards J considered to be the right interpretation in the AMICUS case. In particular “Sexual orientation and its manifestation of sexual behaviour are both inextricably connected with a person’s private life and identity”. Therefore, if the question is asked whether, but for his sexual orientation, the Claimant would have been treated as he was, the answer is “No”. The “Issues” document being considered and raised is concerned with gay sexual orientation. Bishop Priddis would not have considered that further questioning was necessary if the Claimant’s homosexuality had not been raised. The Claimant would have not been required to, in effect, convince the Bishop of his future intentions to the sort of standard that was being consciously or unconsciously required by Bishop Priddis. The fact that Bishop Priddis was not prepared to accept the assurance given to Dr Terry when the Claimant was interviewed, is very clear evidence of particular concern on the part of Bishop Priddis and indicates the fact that the Claimant was gay to be the reason why the Claimant was not appointed.
98. We consider that (on the ground of his sexuaJ orientation) the Claimant was treated less favourably by Bishop Priddis than Bishop Priddis would treat other persons within the meaning of Regulation 3.
Do you see the point? The Tribunal argued that Reaney was directly discriminated against because he was asked questions about his sexual conduct which he wouldn’t have been asked if he was heterosexual. For this reason they rule that the Bishop acted unlawfully. But examining the Regulation as it is actually worded, not how the Tribunal reported it, we can see in section 7 (3) b that a religious employer is perfectly entitled to apply an exemption that is related to sexual orientation. Does this mean that it was perfectly lawful (whether or not it was moral) for Bishop Priddis to question Reaney about his sexual behaviour, precisely because his prior sexual behaviour was homosexual and Issues in Human Sexuality highlighted homosexual behaviour in a way it didn’t heterosexual?
If I’m right it means that the ruling of direct discrimination could be overturned at appeal and all we would be left with is a ruling that Bishop Priddis was perfectly entitled to apply Issues but in practice applied it incorrectly, a ruling that most of us agree with (and which would begin to set as a precedent the principle that the Church of England can discriminate on matters of doctrine and pastoral practice).
Lawyers, your opinions please!!