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!!
Well spotted Peter.
It would appear to be a mundane typo. The word “related” is crucial to distinguish 7(3) from 7(2), and discussed by Mr Justice Richards in the Amicus claim – see 92:
The tribunal discuss this document at length.
Which paragraph of the Amicus case ruling are you suggesting nullifies my point? Paragraph 92 simply refers to the 9 June 2003 letter but doesn’t present an absolute ruling on it. Furthermore paragraphs 106, 117 and 119 seem to support my case. The Amicus ruling as a whole was about whether the 2003 Regulations fitted the European Directive and not a decision on a particular alleged piece of discrimination.
The tribunal considered whether there had been direct discrimination in the Judgment paras. 97 & 98, you cite. They were yet to determine whether the exemption 7(3) applied – ie. whether it was lawful to discriminate. That came later on.
In any case, the Respondents admitted there had been discrimination. If the tribunal hadn’t have found on direct discrimination, they would have found on indirect discrimination.
For an exemption to apply, the bar is set very high, which is a necessary condition of any derogation from the principle of equal treatment.
The respondents admitted discrimination on the basis that section 7(3) of the regulations permitted it. The issue I’m raising is that 7(3)b should have applied to the claim of direct discrimination.
Is this emmanating from the Bishop of Hereford’s counsel?
Or rather, was it this misreading that made them admit to discrimination, thinking it was covered by the exemption?
7(3)b was tested to the claim of direct and indirect discrimination. The tribunal found in the respondents favour on this point: the requirement related to sexual orientation was to comply with doctrine and strongly held religious views.
In order for 7(3)b to apply, the respondents then needed to satisfy the next hurdle 7(3)c, to show that the claimant did not meet the requirement, or to be reasonably not satisfied that he met it. On this, the respondents failed, which was why the tribunal found unlawful discrimination.
Is this any clearer? If only Mr Justice Richards, or someone of his eminence, could do a Q&A blog to help us out! It does get confusing, I must admit.
My argument is that section 7(3)b was mis-applied in relation to the claim of direct discrimination, not indirect discrimination. The issue over direct discrimination was phrased in paragraph 78 of the ruling in terms of discriminating against Reaney specifically because he was gay, because if he wasn’t he wouldn’t have been asked questions in relation to Issues in Human Sexuality. I’m arguing that section 7(3)b covers that adequately when read correctly.
And to pick up your second point, the counsel for the Hereford DBF might reasonably in the light of the above claim that 7(3)c ii covered the Bishop’s refusal to believe that Reaney would remain appropriately celibate. For the record I believe the Bishop was incorrect in refusing to accept Reaney’s assurances, but I raise the issue to discuss the case further.
Hugh, you need to be clear in your comments whether you are referring to the judgement of direct or indirect discrimination. Your comments above don’t make that distinction and perhaps that’s why, from my perspective, you seem to be missing the subtleties I’m raising.
Peter, in paragraph 77, the tribunal were ascertaining whether direct discrimination had taken place within the meaning of Regulation 3, not whether it was lawful to do so because of the exemption 7(3). Clearly the claimant was placed at a disadvantage by being subjected to Issues.
What you want to say is that since it was lawful to apply Issues because of 7(3)b, there was no direct discrimination. Here, you are misreading the Act, not the tribunal!
I think I’m correctly reading the Act since section 7 opens with:
“7. – (1) In relation to discrimination falling within regulation 3 (discrimination on grounds of sexual orientation) …”
which means that 7(3)b is a valid exemption for section 3 (assuming of course you meet the criteria for 7(3)b ). I think if you argued that 7(3)b did actually allow an exemption in relation to sexual orientation when questioning someone who professed to be homosexual as to whether he was in compliance with Issues, then the whole case for direct discrimination (that Reaney was directly discriminated against because he was questioned in a way that he wouldn’t have been if he was heterosexual) vanishes.
You’d be right in saying that, if 7(3)b were the only limb to be satisfied. But, for the exemption to apply, all three limbs must be satisfied. Since only two of them did, all three fail. 7(3)b becomes obsolete.
I recognise what you’re saying. I think I would argue that in relation to direct discrimination section 7(3)c ii was accepted by the tribunal but they misunderstood the meaning of section 7(3)b. Paragraph 91 (and others) of the tribunal judgement seem to accept that the Bishop was entitled to question Reaney, but they then argue in para 97 and 98 that he shouldn’t have because there was no equivalent formal process of inquiry about future lifestyle for someone who was heterosexual and in the same position. This seems to me to be a confusing argument.
Section 7(3)c ii obviously is the ground where Priddis indirectly discriminated. I’m not quite sure whether it fits into the argument made by the tribunal on direct discrimination.
I’ve been thinking for several days about how best to try and explain why I believe that Peter’s original contentions are not correct. Let me try to make some comments now, although I wish to disclaim any eminence at all, much less that now reached by the former Mr Justice Richards.
First, I am in no doubt that the omitted word is a typo. There are quite a few typos scattered through the judgment, most of which look very much as if they arose because it was created by dictation and the transcription was then not fully proof-read. I haven’t found any typos which lead to genuine uncertainty in my mind about what the tribunal meant to say.
Second, if one reads the full judgment, never mind the other tribunal documents, I believe it is quite clear that the tribunal was well aware of the correct wording of Regulation 7(3). And it was discussed at length in the course of the hearing, part of which I attended.
Speaking of typos, I think the number 78 used by Peter and 77 used by Hugh above are typos for 98 and 97.
OK, now the first thing I want to note is that paragraph 4 of the judgment is a document that was agreed between the parties prior to the commencement of the April hearing and it is the official summary of the questions that the tribunal thought it was considering.
Subparas (7) to (10) of that deal with the application of Regulation 7(3). I find this a very helpful gloss on the wording of the regulation.
Now, Hugh has already explained that the tribunal found entirely in favour of the bishop in relation to 7(3)b, indeed on both parts of it, even though only one part was sufficient. But the tribunal found against the bishop in relation to 7(3)c.
However none of the above is WHY the tribunal found that direct discrimination had occurred.
The reasons for that finding is wholly within paras 97 and 98 (although obviously they depend in varying degree on many of the earlier paras).
Then, the tribunal considered whether under Reg 7(3) the direct discrimination that had occurred was nevertheless lawful. And it found that it was not lawful because 7(3)c was not satisfied.
This is all in relation to direct discrimination, i.e. what the bishop actually did.
Indirect discrimination is not to do with the specific acts of the bishop. It is to do with the issue of whether the policy being applied by the bishop (whether this was Issues itself, or whether it was the 1987 GS resolution as the Bishop has argued in conversation with me) is inherently discriminatory in nature.
The tribunal says in para 99 that it would hold that indirect discrimination has occurred, but does not go into any detailed discussion of this, as it has already found that direct discrimination has happened.
Does any of this help explain why the tribunal found what it did?
Firstly, you are incorrect on your description of the finding of indirect discrimination. The tribunal (as I have argued before) clearly found that the Priddis was entitled to apply the Issues criteria to Reaney, but he indirectly discriminated against him by not accepting Reaney’s assurances that he would remain celibate.
On the issue of direct discrimination, I think you miss the point. In particular, the judgement says:
“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.“.
This is the reasoning behind the judgement for direct discrimination, but a plain reading of section 7(3)b of the Regulation would seem to suggest that Priddis WAS entitled to ask the questions he did. The fact of the matter is that the judgement of direct discrimination rested in the questions that were asked (in relation to Issues) and NOT specifically the outcome that was reached by Priddis after asking those questions.
It also strikes me as illogical for the Tribunal to use the argument in it’s judgement on indirect discrimination that Priddis was entitled under Issues to ask the specific questions he did, and to then argue that the reason for the same questions amounted to direct discrimination.
I wonder if we are at cross purposes over terminology.
Here is how ACAS defines â€œindirect discriminationâ€:
Indirect discrimination means that an organisation must not have selection criteria, policies, benefits, employment rules or any other practices which, although they are applied to all employees, have the effect of disadvantaging people of a particular sexual orientation unless the practice can be justified. Indirect discrimination is unlawful whether it is intentional or not.
In the judgement, the tribunal uses the term, in paragraph 99, to mean events under under paragraph 3(1)b of the Regulations, which reads:
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same sexual orientation as B, but –
(i) which puts or would put persons of the same sexual orientation as B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.
The question is in relation to the recruitment process, not defintion of the regulations.
A Genuine Occupational Requirement, is about the post and not any given individual who may apply for that post.
As such a GOR if it is genuine, should be discernable before the post is advertised, and any advertisement/application information must clearly state the GOR in advance of the recruitment process. Candidates then know in advance of the GOR and can decide whther or not to proceed with application.
In this case a GOR was not defined prior to the advertisiing for the post nor in the recruitment process. To have introduced a subsidiary questionning with regard to sexuality following a unanimous reccomendation by the appointment panel is therefore discriminatory and falls foul of the legislation.
Practically, if you have no intention of employing homosexual persons then you need to say so in the job advert. AND probably be prepared to say in court why you think sexuality should be a deciding factor and be prepared to quiz all applicants equally about their sex lives.
I think that’s a brilliant point about the GOR and I hadn’t thought of it until you raised the subject. I do think though that the issue for Priddis wasn’t that Reaney was gay but rather that he had recently been engaged in homosexual practice.
The Cof E have already ruled out the use of GOR. Back to Paragraph 92 of Mr Justice Richards:
“A letter dated 9 June 2003 from the Secretary General of the General Synod and the Archbishopsï¿½ Council to the Clerk to the Parliamentary Joint Committee on Statutory Instruments states (para 13):
“The difficulty is that regulation 7(2) applies only where being of a particular sexual orientation is a genuine and determining occupational requirement. As explained above, we have no posts or offices where there is a requirement to be heterosexual (or indeed homosexual). Our requirements are in relation to behaviour, not sexuality itself. That is why the new regulations 7(3) and 16(3) refer to a ï¿½requirement related to sexual orientationï¿½.”
…and therein lies the difficulty of the church in relating to sexuality. How do you seperate being from behaviour without admitting gnosticism at the same time?
I not sure that separating ontology from praxis is necessarily gnostic. Perhaps you’d care to explain why.
I’m not entirely sure myself but it seems to be defining point in the issue and one I am trying to reconcile. To have an organisational policy which says it is OK to be homosexual but not to have homosexual sex is of essence expressing a separation of ontology and praxis. It is the separation of the two that I feel is reflective of gnosticism, that we could be one thing in spirit and another in body just does not sit well with me. I cannot define that my heterosexuality is separate from my physical relations with the world because of some precept of intellect or spirit. It is not within me to suggest that a homosexual person is any less human than I and would therefore be equally incapable of separating the two. Sexuality is about much more than sex, and is entwined with daily relationships which are overtly not based in sex. To deny only the physical aspect of sexuality creates a duality within which, at the moment for me, equates with a gnostic seperation of types of knowledge.
Sorry if this doesn’t clarify, but I am struggling with the notion myself and may be utterly bonkers, but I console myself with the fact that I am still thinking!
You’re absolutely right njterry. The policy’s obfuscatory, fallacious and cruel.
You know and I know that NJ is NOT arguing that the policy is any of those things.
I think the problem lies with the consideration of whether sexual orientation is in any sense a fixed part of one’s ontology (in the same way that sex or race is, both of which are mentioned as Christian distinctives in Scripture) or whether it’s more fluid. I homosexuality IS a fixed thing them we might be valid in criticising attempts to differentiate orientation and practice, but many, many people like myself have personally experienced that that is not the case.
But even if it were, I still think it’s valid to make the orientation / practice distinction. For example, if we proved that there was a gene for paedophilia, would that mean that we couldn’t morally or teleologically seperate paedophilic attraction and paedophilic practice?
You’re right that sexuality is about much more than sex, but in the same way it is not defined and constrained by sex. Many of us have lived at some point for many years as not actively sexual beings (whether sex or kissing or even holding hands) but that doesn’t mean that we weren’t or aren’t sexual beings per se.
It’s also worth pointing out that gnosticism postures a separation of matter and spirit – I’m not so sure that’s really what we’re talking about here.
There is an argument that the policy is obfuscatory, fallacious and cruel, but not only towards homosexual persons. As a heterosexual I feel that the existing policy denigrates all, even if its temporal effects are more directly felt by homosexuals.
I can agree that sexuality exists as a spectrum and part of that understanding is that even within attempted genetic explanations for sexuality, there is lack of recognition that the human genome is itself not a fixed blueprint. Environmental factors do not just impinge on the social being of humans but over vast periods of time do introduce/discard bits of DNA. It doesn’t disappear but remains as part of the genome, just not in use, at the moment. Paedophilia which you mention as a specific sexuality is no less a subject of scrutiny and part of the sexuality spectrum. I do not think that there is a paedophilia gene, but there may be a disposition of a combination of DNA and social circumstance that creates it. It is only a little over 100 years ago in the UK that the age of consent for sex was raised to 12 and Edwardian society accepted that a potential cure for STD’s was to have sex with a young virgin. So as a matter of telos and praxis, I do not think that paedophilia can be seperated either. Morally is a different question.
The gnostic separation of mind & spirit is the connection I am thinking about at the moment, as I cannot exclude the body from the equation. I am made up of body, mind and spirit and to seperate anyone from the other I feel is wrong.