European Commission Tells Britian Its Exemption For Church Employees Is Too Broad

Yesterday's London Observer reports that the European Commission has written United Kingdom authorities telling them that in the opinion of EC lawyers, exemptions in Britain's Employment Equality (Sexual Orientation) Regulations 2003 , Sec. 7(3), are broader than permitted by EU directives. EU Council Directive 2000/78/EC permits exceptions to employment discrimination bans only "in very limited circumstances ... where a characteristic related to religion or belief ... constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate." Britain currently exempts religious organizations that discriminate on the basis of sexual orientation, so long as they are doing so to comply with their religious doctrines (or with the strongly held religious convictions of its followers). This exemption is available regardless of the nature of the particular job. The British government has already drafted possible language to bring Britain into compliance with the EU.

British Tribunal Interprets Sexual Orientation Exemptions Narrowly

In the first test (see prior posting) of the scope of the exemptions for religious institutions under Britain's 2003 Employment Equality (Sexual Orientation) Regulations, an Employment Tribunal in Cardiff effectively held that the exemptions do not apply to lay leaders or support staff of the Church of England. (Background article). BBC News reports today that the Tribunal found the Bishop of Hereford violated the anti-discrimination regulations when he blocked the appointment of John Reaney as a youth official, despite a unanimous recommendation by an interview panel that he be given the job, and high recommendations from two other Anglican dioceses where he has been employed. The bishop argued that he would have vetoed anyone who was in a committed sexual relationship outside of marriage-- regardless of their sexual orientation. However, Reaney is not now in a relationship. The Tribunal held that the Bishop should only have considered Reaney's present situation, and not questioned him on his future relationships.

House of Lords Votes To Keep Broader Discrimination Exemptions For Religious Organizations

In Britain yesterday, the House of Lords defeated a a government attempt in the pending Equality Bill to narrow the employment discrimination exemptions currently available to religious institutions under the Employment Equality (Sexual Orientation) Regulations 2003. Under that law, religious organizations can discriminate on the basis of sexual orientation in order to comply with religious doctrine or to avoid conflicting with the strongly held religious convictions of a substantial number of the religion's followers. (Sec. 7(3).) The Equality Bill, which consolidates a number of Britain's anti-discrimination laws, would have limited the exemption to individuals whose "employment mainly involves" either "leading or assisting in the observance of liturgical or ritualistic practices of the religion," or "promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)." (See prior posting.)

In the House of Lords, Bishop Scott-Joynt and Baroness O'Cathain, an evangelical, proposed amendments to retain the 2003 exemptions. (Christian Today). According to Christian Institute, in three separate votes yesterday (216- 178, 195-174 and 177-172), the peers voted to approve Lady O'Cathain's amendments.

Catholic Bishops Say Clergy Exemptions In Britain's Proposed Equality Bill Are Too Narrow

On December 15, Britain's House of Lords is scheduled to debate the proposed Equality Bill that has already passed the House of Commons. The Bill is designed to consolidate into a single statute the various anti-discrimination laws that Britain has enacted. (Background.) Britain's Catholic Herald and the Boston Pilot both report on the briefing for Catholic members of the House of Lords prepared by the Catholic Bishops of England and Wales who are concerned that the employment discrimination exemptions for clergy are too narrow. The bill provides an exemption from ban on employment discrimination on the basis of sex, marital status or sexual orientation for individuals whose "employment mainly involves" either "leading or assisting in the observance of liturgical or ritualistic practices of the religion," or "promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)." (Schedule 9, Sec. 2(8)).

The bishops say that many priests do not spend 51% of their time in these two activities. Instead they may be involved for much of their time in pastoral work, private prayer and study or administration and building maintenance. They say the bill may well make it unlawful for the Church to require that a Catholic priest be male, unmarried or not in a same-sex civil partnership, since no priest would be able to demonstrate that he spends most of his time leading worship or explaining doctrine. Last week the House of Commons defeated a proposed amendment that would have allowed religious organizations to hire only people whose conduct was consistent with the Bible's teachings. (See prior related posting.) [Thanks to Scott Mange for the lead.]

In Britain, Queen Announces Proposal To Create Single Equality Commission

In Britain yesterday, the Queen's speech to Parliament (full text) announced that the government would introduce legislation to create a single commission for equality and human rights. The proposal will consolidate nine existing anti-discrimination laws into one Equality Bill. In 2007, Britain's Ministry of Justice circulated a consultation document on this proposal. (See prior posting.) EPolitix and Pink News yesterday both discussed at greater length the provisions of the proposed new legislation. The British Humanist Association issued a release welcoming the announcement by the Queen, but urged that the law also address discrimination by religious organizations. It said: "Existing UK equality law gives religious groups power to discriminate against those who do not share their beliefs in both employment and service provision – even when they are receiving public funding – and this is one inequality that we look to the Government to address."

UPDATE: The Muslim Council of Britain on Thursday particularly welcomed the proposed provisions in the new Equality Bill that will require public bodies to consider how their spending decisions, employment practices, and service delivery can affect people according to their religion. Current law requires consideration of race, disability or gender; the new law would extend this to religion or belief, gender, age, sexual orientation and sexual reassignment. (Mathaba).

Damages, Staff Training, Imposed in Church in England Discrimination Case

In Britain last July, an Employment Tribunal in Cardiff found the Bishop of Hereford violated Britain's Employment Equality (Sexual Orientation) Regulations when he blocked the appointment of John Reaney as a Church youth official. (See prior posting.) Last Friday, in a final ruling, the tribunal ordered the Bishop to pay Reaney damages of £47,345 , and said the diocese staff should receive equal opportunity training. (London Times.) [Thanks to Alliance Alert for the lead.]

British Catholic School Cannot Fire Headteacher Who Entered Civil Union

Articles today in London's Daily Telegraph and yesterday in Britain's Pink News report that lawyers for the Catholic Archdiocese of Liverpool have advised it that it cannot legally fire Charles Coyne, the head of St. Cecilia's primary school, who has entered into a same-sex civil union with a man who is believed to also teach at another school nearby. The archdiocese said that Coyne's personal life had not interfered with his management of the school. Britain's Employment Equality (Sexual Orientation) Regulations provide only narrow exemptions for some religious positions outside the clergy. (See prior related posting.)

Church of England Bishop Tests Scope of Employment Equality Regulations

In Britain, a leading Church of England bishop is forcing a test of the scope of exemptions to the country's 2003 Employment Equality (Sexual Orientation) Regulations. According to yesterday's Observer, the Bishop of Hereford, Right Reverend Anthony Priddis, blocked the appointment of John Reaney as a youth worker, despite a unanimous recommendation of an interview panel that he be given the job. An exemption in the Employment Equality Regulations for organized religion has so far been interpreted to apply only to a few positions that are close to clergy. (Background). On Wednesday, an employment tribunal in Cardiff will hear Reaney's challenge to the Bishop's action.

Britain Faced With Issues of Caste Discrimination

Some 5% of Britain's population are originally from the Indian subcontinent.  Apparently this has led to the importation into Britain of problems of caste discrimination. The London Mail reported yesterday on a case pending before an employment tribunal in which a couple-- from different castes-- claim they were forced from their jobs in a British law firm because of their marriage. Amardeep Begraj, a solicitor, a Sikh from the Punjab region, belongs to the Jat caste.  She met her husband, Vijay-- a  low-caste Dalit-- at the law firm where he worked as the practice manager.  They were warned by a senior colleague not to marry because of their caste differences.  Amardeep claims that her workload was increased and her secretarial support reduced as punishment after she was married, and that she was paid less than colleagues.  After Vijay was fired, Amardeep resigned from the firm. The employment tribunal is considering whether this constitutes racial or religious discrimination. Meanwhile, the government is considering whether to add caste to the equality law that now protects against discrimination on the basis of race, gender, religion and sexual orientation.

European Court of Human Rights Vindicates Britain In 3 of 4 Cases Denying Accommodation of Christian Beliefs

Yesterday, seven judges sitting as a Chamber of the European Court of Human Rights handed down a decision in four widely followed employment discrimination cases brought by Christians in Great Britain who sought accommodation of their religious beliefs. (See prior posting.) Two of the cases involve women employees whose employers prevented them from wearing a cross on a necklace.  The other two cases involve claims that religious beliefs opposed to same-sex marriage and homosexual relationships should be accommodated.  In Eweida and Others v. United Kingdom, (ECHR 4th Section, Jan. 15, 2013), the court held that there had been a violation of Art. 9 (Freedom of Religion) of the European Convention on Human Rights in only one of the cases.  By a vote of 5-2, the court held that the United Kingdom violated Art. 9 by failing to adequately protect British Airways employee Nadia Eweida who wanted an exception to the airline's uniform rules so she could wear a visible cross around her neck. The court awarded her damages of 2000 Euros and costs of 30,000 Euros.

British law bars employment discrimination unless the employer can show that its requirements constitute "a proportionate means of achieving a legitimate aim." As to Ms. Eweida, the Court majority said:

[A] fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief.... [T]his is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.... [W]hile this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.

However in the case of Shirley Chaplain, a geriatric ward nurse at a state hospital, the court held unanimously that the requirement she remove her necklace displaying a cross to prevent injury when handling patients was justified.

The third case involved Lillian Ladele, a local registrar of births, deaths and marriages, who refused on religious grounds to conduct civil partnership ceremonies. In a 5-2 decision, the Court rejected Ladele's claims under Art. 9 and the non-discrimination requirements of Art. 14, holding that local authorities are given "a wide margin of appreciation" in balancing religious freedom rights with the mandate not to discriminate on the basis of sexual orientation. Two judges dissented, saying that the issue is primarily one of freedom of conscience. They continued:

Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal... Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users.  Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others. Thus ... the means used were totally disproportionate.

The fourth case involved Gary McFarlane, who was a counselor at an organization that provides sex therapy and relationship counselling. He was dismissed after he expressed concern on grounds of his Christian religious beliefs about providing psycho-sexual therapy to same-sex couples. The court unanimously rejected  his claim of discrimination and infringement of religious freedom, saying:  "the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination."

The Chamber judgment can be appealed to the Court's 17-judge Grand Chamber. The Guardian reports on the decision, as does a press release from Alliance Defending Freedom.

Britain's Court of Appeals Rules Against Gay Priest's Employment Discrimination Claim

In Pemberton v Inwood, (EWCA , March 22, 2018), the England and Wales Court of Appeal ruled against Jeremy Pemberton, a gay Church of England priest who was prevented from taking a position as a hospital chaplain when he married his same-sex partner.  Pemberton sued claiming employment discrimination and harassment. Lady Justice Asplin's opinion held that the action taken against Pemberton falls within a statutory exception from the Equality Act's discrimination provisions for religious organizations that impose various requirements regarding marriage and sexual orientation.  Rejecting Pemberton's harassment claim, Justice Asplin said in part:

If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive.

 The Guardian reports on the court's decision. (See prior related posting.)

British Humanists' Report Criticizes Faith-Based Services In UK

The British Humanist Association today announced the release of a new report titled Quality and Equality: Human Rights, Public Services and Religious Organisations (full text) (Executive Summary). The report focuses on BHA's concern about the increasing use of religious organizations in Britain to supply social services under contract with the government. In its press release, BHA described its conclusions:

The report’s findings demonstrate that there is no evidence that religious organisations offer any distinctive benefits to the supply and provision of public services and actually that the Government’s clear policy objective of expanding the role of religious organisations within the public services runs the risk of lowering standards, increasing inequalities, introducing ‘parallel services’ and damaging social cohesion.

The research warns of the dangers of discrimination against staff not protected by Employment Equality Regulations pertaining to religion or belief or sexual orientation because of the exemptions that religious organisations have from equality legislation, and of potential barriers to accessing public services for the general public.