The Gay and Lesbian Humanist Association greatly welcome the Minister’s determination to “establish basic requirements in law so that people can no longer be denied jobs because of prejudice; so that harassment can be tackled promptly and effectively; and so that people have an equal chance of training and promotion, whatever their background”. The following comments are made in pursuit of the same objectives.
Our members are particularly concerned to ensure that provisions made to “give employers some flexibility to appoint people because they have a particular characteristic, provided that they can justify their decision” (paragraph 5) do not create loopholes which can be abused. While we therefore welcome the statement (paragraph 55) that occupational requirements must be “genuine”, we deplore the proposed departure from that approach in paragraph 84 and in clause 7(3) of the draft Employment Equality (Religion or Belief) Regulations – departures which would undermine the spirit of the legislation.
We note the comment (paragraph 12) that “discrimination against lesbians and gay men at work is more likely to take the form of harassment after settling into a job”, but think it important to ensure that issues potentially relevant to sexuality cannot be raised in selection and promotion procedures.
One of our major concerns is the potential for conflict between avoiding discrimination on grounds of religion and of sexual orientation. It is not clear, for example, how the regulations would require employers to deal with employees who believe their religious ethos imposes on them the duty to proselytise fellow workers who are humanists or atheists and/or to attempt to “convert” homosexual colleagues. Acting on any such perceived religious duties must be treated as harassment, and doing so must not be seen as discrimination on grounds of religion. Issues such as this will need covering in the written guidance (paragraph 121).
A particular aspect of indirect discrimination arises from the fact that lesbians and gay men are more likely to be unmarried than are their heterosexual colleagues. This means that measures favouring married people inevitably constitute indirect discrimination in respect of sexual orientation. (The fact that homosexual couples cannot marry each other reinforces this.) Consequently, we do not support the interpretation in paragraph 80, and oppose the inclusion of regulation 29 in the draft Employment Equality (Sexual Orientation) Regulations. Prejudiced employers who resist change will need legal pressure to drop this form of discrimination.
We welcome the decision (paragraph 47) that a tribunal should pay due attention to the perception of the complainant; and we support the eight-week deadline proposed in paragraph 68 and the extensions mentioned in paragraphs 68, 69, and 85.
We welcome the intention to produce strand-specific guidelines including one on “What is a religion?” (paragraph 123). It will be essential to make it clear that discrimination is not legal if it is on grounds relating to beliefs such as Humanism, Agnosticism, Atheism, etc. any more than it would be in relation to religions such as Islam, Judaism, or Christianity or to Buddhism.
We turn now to the two statutory instruments which are of particular concern to us: the draft Employment Equality regulations relating to Sexual Orientation and to Religion and Belief, starting with the former.
In the draft regulations on Sexual Orientation in the definition of “sexual orientation” (regulation 2(1)) we would prefer to replace “an orientation” by “a sexual or emotional orientation”. We deplore the implied association of sado-masochism and paedophilia in the Explanatory Notes (paragraph 9) to that regulation. Practices such as the former should be covered by the protection against discrimination, though child abuse certainly should not be.
The exception for genuine occupational requirements (regulation 7) causes us some concern, as we are not sure how the word “determining” would be interpreted by the courts. It would be better to replace “determining” with “necessary” (or perhaps to include both words). The implications for lesbians and gay men (religious ones as well as humanists) working (or wishing to work) for religious organisations are of particular significance. The “faith communities” are becoming major employers, particularly in welfare and educational fields, and are obtaining support from the taxpayer to those ends. Discrimination by state-aided bodies is especially objectionable. Failure to abide by comprehensive anti-discrimination policies should lead to the removal of all financial support, whether coming from central or from local government. It is unfortunately the case that the ethos of some (mainly fundamentalist) religious groups includes the practice of sectarian hatred and even the preaching of inter-communal violence. There can be no possible justification for permitting discrimination against people who oppose such activities.
In relation to regulation 9, we would favour covering all employment inside and outside Great Britain by firms with UK headquarters, as well as all other employment within Great Britain. Similar considerations should apply to office-holders, post-holders, etc. (regulation 10) and to vocational training (regulation 25).
We think that it would be appropriate to include the provisions discussed in paragraphs 46 and 47 of the Explanatory Notes in respect of pension schemes and insurance services.
We see no need for the exception in respect of national security. Draft regulation 28 should be deleted.
For reasons explained at 5 above, we also strongly oppose any exceptions for benefits dependent on marital status (regulation 29).
Further to regulation 31, we are not clear how the law would apply to a conspiracy to breach these regulations.
In the draft regulations on Religion or Belief we are not satisfied by the definition of “religion or belief” (regulation 2). The word “similar” could be deemed by the courts to exclude the beliefs of humanists, agnostics, atheists, etc. Each is a “profound belief affecting way of life or view of the world” (to quote paragraph 9 of the Explanatory Notes), and we think it vital that the regulations should cover them explicitly. (Some of our members say that “coming out” as a humanist or atheist can be as problematic as doing so as a lesbian or gay man.) We think it important to obtain legislative clarity in all such cases.
We oppose the wider definition of a genuine occupational requirement provided by regulation 7(3). The explanatory note (paragraph 22) gives no justification for this provision. It should be deleted, as should the reference to it in 7(1). An occupational requirement should be a necessary one to gain the exception given in the regulation – so, as far as religious organisations are concerned, only those posts that necessarily and essentially involve proselytising should be covered. This point is particularly important as religious organisations are frequently major employers, particularly in welfare and education fields.
Many of the comments made on the regulations about sexual orientation apply to those on religion or belief too – e.g. those relating to regulations 17, 18, and 25. But we wish to repeat explicitly that regulation 28 should be deleted.
Finally, returning to The Way Ahead, we regret that in paragraph 22 the government say they “do not propose to cover discrimination which takes place outside employment and training fields”. We hope that the law will be extended outside those fields before long.