Monday, 1 December 2003

employment law milestone

By a ironic quirk of the liturgical calendar, the day on which the The Employment Equality (Sexual Orientation) Regulations 2003 take effect is St Andrew’s Day.
My article published in the Church Times ten days ago appears below.

The text of the regulations is here.
The text of the ACAS guidance can be downloaded as a pdf file from here.
More advice from the Department of Trade and Industry is available here.
The regulations have already been amended to bring occupational pension funds within their scope, and the text of the amendment is here.
Earlier reports by me can be found here.

From the Church Times 21 November 2003

Burden of proof rests on employer under new law

Want to offer the job only to a heterosexual Christian?
Then watch your step, advises Simon Sarmiento

It will be illegal from early December onwards to discriminate in the British workplace because of religion, belief or sexual orientation. Special exemptions have been granted for religious organisations, but these are narrowly drawn and do not apply automatically.

Two new sets of Employment Equality regulations apply to all employment and vocational training. They cover the processes of appointing Church of England clergy, including bishops. They prohibit direct discrimination in recruitment, promotion, transfers, terms and conditions, dismissals, or vocational training. Only in this area of direct discrimination do special exempting clauses apply.

Indirect discrimination - that is, any unjustified practice which disadvantages people of a particular religion or sexual orientation - the harassment of workers, and the victimisation of complainants or their supporters, are all prohibited for churches, mosques, or temples, just as for everyone else.

Earlier this month, the Advisory, Conciliation and Arbitration Service (ACAS) published detailed advice on how to comply with these new requirements.

Both regulations allow any employer to claim an exemption from some of the direct-discrimination rules. What is called a Genuine Occupational Requirement (GOR) is where “considering the nature of the work and the context”, being of a particular religion, or being of a particular sexual orientation, is “determining”. The appointment of chaplains to hospitals is given as a (religion) example. But additional clauses grant further exemptions to religious organisations.

In every case, a careful procedure must be followed in the appointment process to claim a GOR. Advertisements and other material should explicitly state what GOR is being claimed, and each post must be considered separately, says ACAS. Would-be applicants are at liberty to complain to an employment tribunal that they have been prevented from applying, and that a GOR claim is unjustified. The burden of proof rests with the employer and only a tribunal or higher court can give an authoritative ruling. Under the Data Protection Act, applicants may ask for copies of notes taken during the selection process.

The additional clause is different in each set of regulations. The Religion or Belief clause is more widely available. To claim an exemption on ground of religion, an organisation has to demonstrate first that it “has a religious ethos” but ACAS says that “a GOR exemption cannot be claimed if the nature of the role and the context within which it is carried out is not of sufficient profile or impact within the organisation to affect the overall ethos of the organisation”.

The Sexual Orientation additional clause is quite different. It has to be shown that the specific job is “for the purposes of an organised religion” and that a GOR is necessary (not merely preferable) “so as to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers”. But it allows a GOR to be claimed, not only for being of a particular orientation, but also for “a requirement related to sexual orientation” (italics mine). This was inserted at the request of the Archbishops’ Council and is intended to allow the application of a “marriage or abstinence” policy. But it will ultimately be for a tribunal to decide if that policy is justified in law.

Posted by Simon Sarmiento on Monday, 1 December 2003 at 9:44 PM GMT | TrackBack
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Categorised as: Employment Equality