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Towards Equality and Diversity— Implementing the EU directive

Response from the Lesbian and Gay Christian Movement

Introduction and General Observations

1. LGCM has around 4000 national, local and denominational members. Our aims are -

1. To encourage fellowship, friendship and support among individual lesbian and gay Christians through prayer, study and action, wherever possible in local groups, and especially to support those lesbian and gay Christians subject to discrimination.
2. To help the whole Church re-examine its understanding of human sexuality, and to work for a positive acceptance of lesbian and gay relationships within the framework of the Statement of Conviction…so that all homosexuals may be able to live without fear of rejection or recrimination, and that lesbian and gay Christians may be able to contribute fully to the life and ministry of the Church.
3. To encourage members to witness to their Christian faith and experience within the lesbian and gay community, and to witness to their convictions about human sexuality within the Church.
4. To maintain and strengthen links with other lesbian and gay Christian groups, both in Britain and elsewhere.

2. LGCM's interest in this consultation is to protect from discrimination not only lesbians and gays, but all who support our Statement of Conviction, whatever may be their own sexual orientation -

Statement of Conviction

"It is the conviction of the members of the Lesbian and Gay Christian Movement that human sexuality in all its richness is a gift of God gladly to be accepted, enjoyed and honoured as a way of both expressing and growing in love, in accordance with the life and teaching of Jesus Christ. Therefore it is their conviction that it is entirely compatible with the Christian faith not only to love another person of the same sex but also to express that love fully in a personal sexual relationship."

3. We also attach the highest importance to the rights conferred on all individuals by Articles 8, 9 and 10 of the European Convention (Schedule 1 to the Human Rights Act, 1998), while noting the limitations expressed therein. At some points these individual rights appear to be imperilled by the current proposals.

4. We welcome generally the new protections which will be given by the intended legislation to lesbian and gay individuals at or seeking work, not least as part of the wider movement to establish full equality in our society as between homosexuals and heterosexuals. But we have concerns over the proposed treatment of "religion or belief", and over the special exemptions to be permitted to churches and other organisations based on religion or belief under Article 4.2 of the Directive. We deal in detail with these below. Meanwhile we make some observations on the general issue.

5. We note that the pressure for Article 4.2 came largely from Christian evangelicals and from the institutional churches (see eg speeches in the House of Lords, Hansard, 30.6.2000). It is deeply unedifying to see Christian bodies scrambling to aspire under this Article to the widest possible exemptions - exemptions which would allow continued (or even new) policies of discrimination, to be practised by them as "faith employers", that would not be permitted to the rest of society. The inescapable impression must be left with other members of the public that faith bodies - often ready (rightly) to enjoin the full observation of human rights in other societies around the world - are quick to seek special treatment when it comes to their own role as employers. It is painful for us, as Christians who believe in the inclusivity of the Gospel and the Church, and who wish for a revitalised evangelism based on that inclusivity, that the chief institutions in our own religion want leeway made so that exclusivity can be practised by the narrowest and most fundamentalist within the Christian community. We do not believe that most professing Christians want this exclusivity either, especially since some of them will then themselves risk being debarred from work by their fellow-Christians.

6. Looking beyond the damage which these exemptions could create for the churches in preaching the Gospel, we are profoundly concerned by the wide scope which it is suggested should be given to all "faith employers" both to define themselves as such and to claim that up to all of their employees should share their particular beliefs in order to maintain their special "ethos". It is highly undesirable that the law should envisage, or inadvertently encourage, the creation of a multitude of faith-based "employment ghettoes", talking to and regarding only their own believers' groups. Since the events of 11 September 2001 this concern has gained a special force. In its wake, Parliamentary unease has already been voiced at the failure of many voluntary aided schools to incorporate and accept a significant proportion of pupils who do not share their managers' particular beliefs. There is also concern at the commitment of some of these schools to "Creationism". If more such schools (and other services) are provided by faith-based bodies, the risk grows of a society in which young people grow up within cultural and belief compartments which neither understand nor fully respect the views and beliefs of others from different traditions. A fortiori, the far wider spread of exclusivity among those who decide to claim that their organisations or businesses are "faith-based" would make things immeasurably worse. This is exactly the wrong direction to take as we seek to build a truly multi-faith, multi-ethnic society which is at ease with itself, and which encourages integration, friendships, understanding, sympathy and common values across all belief boundaries among all its citizens. It will only further stimulate the sense of alienation between different religious communities so recently deplored by the chairman of the Commission for Racial Equality.

7. It is argued that the Article 4.2 exemption is needed precisely in order to secure the religious freedoms specified in Article 9 of the European Convention; in other words, that there is a collective right for believers to set up exclusive organisations. This seems to us a misreading of Article 9. Believers are clearly there given the right together to manifest their religion or belief in worship, teaching, practice and observance. But there is no right expressed to permit the exclusion of others from employment by the relevant organisation as a result. No one is going to prevent or disqualify a believer in the organising group from either observing or practising his religion (which would indeed infringe Article 9). But Article 9 must be applied in such a way as to allow individuals freely to change their religion or belief, and the text also requires their "rights and freedoms" to be protected. Thus individuals who do not share the particular nuance of their employers' religious beliefs have the right to protection against actions by the latter which infringe their own freedom of belief and the freedom to practise it.

8. Finally, we stress that protection against discrimination for homosexuals (gays and lesbians), and for those whose religious beliefs support them (as does our Statement of Conviction) are among the primary purposes of the Directive, and that Article 8.2 (to which we return below) bars any implementation of the Directive which reduces existing levels of protection. It would be an unacceptable paradox if the implementation of Article 4.2 led in practice, if not in intention, to the legitimation by statute of discrimination by homophobic employers who sought to reshape or redefine their organisations as "faith-based", or to "clarify" their claimed ethos as one which rejected beliefs supporting same-sex relationships.

9. The Government intends to put the required legislation in place by regulation under the European Communities Act. Ideally we should have preferred primary legislation, but we can see that it might not be possible to enact this before the deadline set in the Directive. Far more important, in our view, is for the proposed regulations to contain specific provisions to remove some of the uncertainties that would arise from merely following the language of the Directive.

B. Basic Concepts and Definitions

10. "Direct discrimination" (Q5). We agree with the proposal in Chapter 4.6

11. "Indirect discrimination" (Q6). We believe there should be one single definition of this, and therefore support Option 1. It is not advisable to have differing definitions, not least in view of possible "multiple discrimination", and the probable eventual single administration of all anti-discrimination law.

12. "Harassment" (Q7). For similar reasons, we believe there should be a single definition in all anti-discrimination law, and therefore favour Option 2 (Chapter 6.9). However, it would be possible to enrich this by making ground © in Chapter 6.6 an alternative requirement to grounds (a) and (b). A cumulative requirement for proving harassment would mean a distinction between the Race Relations Act and the new legislation. As the Directive lays down minimum standards of protection, there is no reason to adhere absolutely to the wording of Article 2.3 of the Directive.

13. Q8 asks whether we would support the "reasonable person" test if Option 2 were chosen. LGCM has argued against such a test in our submission to the Home Office in response to "Setting the Boundaries", on the reform of the law on sexual offences, and we do so here too. Pejorative and homophobic behaviour and offensive jokes and gestures are still too common in society at large. If the concept of a "reasonable person" is drawn from that society it might thus be argued to a Tribunal that such a person would find no harassment in their use. Therefore if a reasonability test is envisaged, it should be "whether it was reasonable for the complainant to regard the conduct concerned as violating his dignity, in the circumstances cited".

C. Guidance, representation and administration

14. Guidance. It appears that official thinking favours the framing of the law in broad and general terms, largely following the wording of the Directive. It is argued that this will provide maximum flexibility, leaving Employment Tribunals to adjudicate case by case on individual issues. But we believe that this could lead to flooding of the system - not least since the Tribunals are not bound to follow case law based on each other's judgments. We therefore favour clarification over total flexibility (and make some suggestions below) so as to avoid expensive and unnecessary litigation.

15. It is suggested in Chapter 8 (Q9) that written guidance should be provided before the legislation comes into force. We welcome this, and indeed consider it essential. But while some Tribunals may wish in some cases to draw upon such guidance, they would not be obliged to do so unless the guidance is given statutory force. The case for statutory guidance is reinforced by the changes created through the Access to Justice Act, 1998. Employment Tribunals are bound to follow the legal guidelines laid down by the Court of Appeal. But the effect of this Act is to restrict appeals in such cases to two only, and we believe that permission is only rarely given for appeals to the Court of Appeal from Employment Appeals Tribunals. Consequently it will be a long time before the Court of Appeal will have sufficient material before it upon which to base such binding guidelines. There is thus the risk of prolonged initial uncertainty about the interpretation of laws which may already be couched in too general terms.

16. Third party intervention.. We understand that this is normally heavily restricted before Employment Tribunals. But Article 9.2 of the Directive makes it mandatory to allow such interventions from associations, organisations or other legal entities with a legitimate interest. So provision for this must be included in the forthcoming legislation.

D Sexual Orientation

17. This is the first of the two fields for non-discrimination with which LGCM is concerned. We have already commented above on harassment (Q20).

18. Definition of "sexual orientation" (Q21). We think it preferable to leave the term undefined. We are also against any proposal to exclude from protection those alleged to have had unlawful sex. It needs stressing that the law on sexual offences still incorporates discrimination between same-sex and different-sex conduct. It is urgent that it should be modernised and rendered non-discriminatory (and, as noted above, we have contributed detailed views on this). But even when those changes have been made, there will be a core of workers convicted in the past under an unequal law whose rights deserve protection. We agree therefore with Chapter 12.6 that there are other ways of protecting the public against eg paedophilia, and that no unlawful conduct exception should be included. Meanwhile we believe that no court anywhere has so far defined "sexual orientation" as including paedophilia.

19. Pay, pensions etc (Chapter 12.7-8). We wish to see public policy uphold and sustain life-time, faithful same-sex partnerships, and therefore hope that a civil partnerships law will be enacted as soon as possible. Meanwhile, this passage does not adequately consider even the existing situation under which, with the free movement of workers within the EU, more and more registered (or even married) same-sex partners are likely to be living in Britain.

E. Religion or Belief

20. This is for us the heart of the Directive because LGCM is based on religious belief, not on sexual orientation.

21. There is no definition of either term in the Directive, nor in the rest of EU law. The Government is not itself apparently proposing such a definition (Chapter 13.4), and this is wise, because if it did the legislation could be subject to complaint up to the European Court of Justice as providing less protection than the Directive stipulates.

22. Nevertheless, the Government proposes to make clear that "belief" is to be limited so as to exclude (a) "political belief" and (b) beliefs "not similar to" religious belief. These limitations would instantly give rise to the risk above. In view of this, and the complications set out below, LGCM considers that "belief" should have the widest possible interpretation. We take each of the proposed qualifications separately.

23. "Political belief". Unless this term is restricted, it will include belief in favour of (or against) a specific public policy, as well as party political beliefs. Yet members of each category to be protected are likely to feel strongly about public policy issues related to their own special characteristics or circumstances. Thus a Roman Catholic might campaign to tighten the abortion laws, or an Anglican to disestablish his Church. Older people might lobby for improved State pension rights or improved public care for the elderly. Those disabled might campaign for higher disability allowances. Gay and lesbian people might lobby for a civil partnership law, changes in the criminal law, or in pension law. All these beliefs are "political" in the ordinary sense of the word. Yet it would be absurd to permit the individuals concerned to be discriminated against not because of what they were, but because of what they said and did in relation to relevant areas of public policy.

24. Consequently we do not agree with the proposal in Q22 (first part). We suggest instead that if the Government is determined to take this route it should include provisions clearly defining what is, and what is not, "political" (ie justifying exclusion from protection). We offer two ideas -

1. "Political belief" means support for, or opposition to, specific political systems, political principles or political parties"
2. "Notwithstanding any other provisions in these Regulations, it shall be unlawful to discriminate against any person on the grounds of any belief held or expressed by him which is founded on, or directly related to, his age, disability, religion or sexual orientation".

Both these provisions should be included.

25. Belief "similar to" religion. This is a veritable minefield, not least since it is not intended to define "religion". We understand that the Government have in mind protection only for profound philosophical convictions similar to religious belief (which perhaps credits most people's religious views with a depth of reflection that is unfortunately all too rare). Take then the case of a meat-serving restaurateur who does not want to employ a vegetarian waiter. If the waiter is a vegetarian because he is a Hindu, or follows Dr. Schweitzer's philosophy, he will be protected. If he is a vegetarian on personal health grounds, he will not. If he believes in vegetarianism as an aspect of animal rights, or simply as a universal "good health" prescription for the human race, his own right to protection may depend on being able to relate his attitude to a profound set of convictions about the relationship between the different life-forms in creation. These anomalies will seem absurd and unsustainable to the ordinary public. (The situation will be even more anomalous if the restaurateur can claim "faith exemption" under Article 4.2, eg as running "a Muslim business". In that case he could refuse to accept a Hindu waiter on the grounds that the "ethos" of his business was Islamic and needed to be protected; see below.) Beliefs could also be cited by an employer wishing to discriminate which had nothing to do with the work in question ("I'm not employing someone here who thinks corn circles are made by aliens"). Such discrimination would be quite unjustified and unfair. Consequently LGCM thinks "belief" should be given a much wider meaning (Q22). This will make the task of the Tribunals much simpler, and decisions less open to challenge, in terms of the Directive, at the European Court.

F. Occupational Requirements (Article 4.1) (Q 11)

26. Although LGCM originally argued for definition and specification of permissible exemptions from the general rule of non-discrimination, we accept that this approach has not found favour, and therefore go along with the proposal in Chapter 9.5, provided it is supported by clear statutory guidance.

G. Occupational Requirements (Article 4.2) (Q 23)

27. This Article contains complex elements, each of which needs separate scrutiny, not least since it describes the maximum exemption which can be given; Governments are not obliged to go so far, and we think it wrong that they should. Its effect first is to save existing national legislation. In Britain this means only the Schools Standards and Framework Act, 1998. S.60 of that Act permits voluntary aided schools (only) in the employment of teachers (only), to have regard to whether their religious opinions accord with the tenets of the religion specified; whether they attend religious worship in accordance with those tenets; or give religious education at the school in accordance with those tenets. It is now clear that, in some schools at least, a belief in Creationism as a scientific fact can be demanded of all teachers. We consider this pernicious. It illustrates very well the possible consequences of permitting faith segregation in other work areas outside education. Employers may also cite, in terminating a teacher's employment, any conduct on his part which is incompatible with the precepts or tenets of the relevant religion or denomination. LGCM has pointed out several times to the Government that if the use of this provision led to infringement of, for example, the rights of gay or lesbian teachers to their private and family life under the European Convention, it would be liable to challenge under that Convention.

28. If the Act is preserved by Article 4.2 it must be stressed that it cannot be extended to cover other employees in such schools, because that is forbidden by Article 8.2 of the Directive. This should be made crystal clear in the statutory guidelines.

29. The second element is that Member States' legislation may incorporate only national practices existing at the date of adoption of the Directive, viz. 2.12.2000. Once again this has to be read with Article 8.2; under no circumstances may protection existing at that date be reduced. We consider that there is therefore a requirement to prove the existence of the relevant practices at that date on the part of the employers seeking to benefit from Article 4.2 when cases affecting them come to a Tribunal, assuming the employer itself was in existence at that date. We understand that some are in fact already seeking to "clarify" or "redefine" their previously general mission statements and recruitment policies with that specific aim in mind. In our view it must be made absolutely clear that they cannot do this, as it worsens the position of their employees by comparison with the situation on 2.12.2000.

30. The third element is the beneficiaries. These are the churches, and "other…organisations the ethos of which is based on religion or belief". There is no difficulty in accepting that non-church bodies such as religious Orders, which have a clear and well-publicised rule of life, are included in this group. We believe the original intention of this wording was to include belief organisations such as Buddhist groups, the National Secular Society, and others standing to practise or forward particular philosophical beliefs or principles which they would not describe as "religious". We cannot therefore see why any organisation whose primary function is not the advocacy, observance, or support of specific religious or other beliefs should also be included. What we fear is that a rash of other employers, whose organisations exist primarily to supply ordinary goods or services, will seek to take advantage of this provision to declare that they are "faith-based", and will therefore not employ any individual who sympathises with or supports beliefs like our own Statement of Conviction. This should not be permitted.

31. We propose for consideration a definition of this second group of organisations covered by Article 4.2 -

"For the purposes of this Part an organisation shall be held to have an ethos based on religion or belief when its stated purpose involves the advocacy, observance, teaching or support of specific ethical systems or principles, whether religious or not."

32. The fourth element is what the churches and such organisations are then allowed to do. They may discriminate on the basis of a person's religion or belief when the relevant occupational activities, or the context in which they are carried out, constitute a "genuine, legitimate and justified" requirement, having regard to their ethos. However, such discrimination is not to be used to justify discrimination on another ground.

33. It will not therefore be possible for "faith employers" to refuse work to gays, lesbians or bisexuals on grounds of their orientation. But they might seek instead to impose a belief requirement that would oblige such employees to renounce anything like our own Statement of Conviction, and to condemn same-sex relationships as "sinful", whatever their quality. This would amount to undermining the self-acceptance and self-respect of their gay and lesbian employees, by requiring them to deny the validity and God-given nature of their own sexuality, and would therefore in our view breach the Directive. We therefore again underline the importance of our proposal in paragraph 24 (b) above.

34. We reject the inclusion of the "context" clause as an alternative justification for discrimination entirely apart from the specific occupational requirements of the job concerned. As pointed out above, it is not necessary, in complying with the Directive, to include this provision since Article 4.2 only stipulates the maximum exemption which can be permitted. If the job itself does not justify discrimination on belief grounds it is an unacceptable infringement of the worker's Article 8 and 10 Convention rights to permit discrimination by the employer. If put into law, it would allow the relevant employers to stipulate that everyone in their employ had to toe the line on the employer's own variation of their religious belief, or risk being sacked. Discrimination should only be allowed by relation to the actual duties to be carried out (cf the SSFA). Consequently we disagree with the proposals in Chapter 13.14 (Q 23).

35. The last element in Article 4.2 is the proviso, which applies only to "faith employers". This would allow them to "require" individuals working for them to act in good faith and with loyalty to the organisation's ethos. Many, if not most, non-faith employers, from the Civil Service and police to trade unions and ordinary businesses, have similar expectations of their staff. Yet this proviso will not apply to them. We think it wrong for it to be especially incorporated in the legislation which reflects Article 4.2. Were it specified for "faith employers" alone, the inference could be drawn that no other employers could expect their staff to show such loyalty and good faith. Faith employers should rely instead on the general rules applying to all employer/worker relations.

36. But an important extra point needs to be made. As Chapter 13.13 makes no reference to staff having to "act in good faith and with loyalty to …ethos" only at work, it seems the Government have in mind provisions which would allow the relevant employers to control their employees' private and family lives (contrary to Article 8 of the European Convention), and even the public expression of their private beliefs (contrary to Articles 9 and 10 of the Convention). It would be utterly wrong for narrow-minded employers to be able to allege "bad faith" or "disloyalty" if, for instance, a gay or straight staff member were living quietly in a private relationship, or were seen buying National Lottery tickets, or drinking in a pub, or going to "the wrong church", when the employer believed that such private relationships, gambling or alcohol consumption were "contrary to its ethos". We therefore urge that if, despite our arguments, this proviso is maintained the legislation should explicitly state that an employee's rights under Articles 8, 9 or 10 may not be infringed under it; and that only actions seriously prejudicing the employer's declared ethos may be cited as grounds for disciplinary action amounting to termination of employment.

37. Several other requirements should also feature -

1. that the declared "ethos" should, for public organisations, be made openly available to the public, and, for all organisations, to all staff before their employment
2. that the employer should be required to prove in which respect the behaviour complained of seriously prejudiced their ethos
3. that uniform application of the employer's code should be shown to have been the rule
4. that the employer's recruitment and staffing policies were in fact objectively justified (not "could be", as in Chapter 13.16(b)).

H. Other Issues

38. Public security. Chapter 2.20 makes a proposal on which responses have not been sought in the Questionnaire. We consider that this provision, if activated, should be operated with the greatest transparency possible, and its individual application justified case by case.

27 March 2002

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