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Religious  Civil  &  Discrimination  Law
(Sexual Orientation Discrimination)

At the same time as the Government introduced  The Employment Equality (Religion or Belief) Regulations 2003  it also introduced  The Employment Equality (Sexual Orientation) Regulations 2003  Similarly when Part 2 of the Equality Act was passed making Religious Discrimination in the supply of goods and services illegal, provision was made for the Equality Act (Sexual Orientation) Regulations 2007 which similarly make  Sexual Orientation Discrimination illegal. 

The  government has issued  Guidance on the Employment Regulations and Guidance on the Goods and Services Regulations.  The possible scope of the Goods and Service Regulations was considered in the Northern Irish case of Christian Institute and an Application for Judicial Review [2007] NIQB 66  which looked at the very similar Northern Irish Sexual Orientation Regulations.

 “Sexual Orientation” is defined similarly in Reg 2(1) of the 2003 regulations  and s81 Equality Act 2006  as meaning an individuals sexual orientation towards - 

(a) persons of the same sex;
(b) persons of the opposite sex; or
(c) persons of the same sex and of the opposite sex.

It should be noticed that this definition cuts both ways. It is just as unlawful for a homosexual or lesbian to discriminate against a “straight” person as it is for a “straight” person to discriminate against a homosexual or lesbian person.

One of the problems which was recognised when these regulations were introduced is the fact that in many religions Homosexuality is regarded as a sin therefore it was argued that it would be difficult if not impossible to oblige Religious employers to employ practicing homosexuals or for religious organisations to provide services to them.  These points are addressed by Reg 14 2007 Regulations and Reg 7(3) 2003 Regulations  which states that the regulations do not apply in Employment situations 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

 (c) either -

(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.

 In the case of  Amicus & Ors v DTI & Ors  the legality of  Reg 7(3)  was challenged by various Trade Unions who claimed that the exemption was in conflict with European Union   Council Directive 2000/78/EC   and with articles 8 and 14 of the European Convention on Human Rights. These challenges were rejected though paragraph 117 of the Judgement by Mr Justice Richards does indicate that the exemption in  Reg 7(3) is likely to be limited in scope.

 “In my view the condition in regulation 7(3)(b)(i), that the employer must apply the requirement "so as to comply with the doctrines of the religion", is to be read not as a subjective test concerning the motivation of the employer, but as an objective test whereby it must be shown that employment of a person not meeting the requirement would be incompatible with the doctrines of the religion.  That is very narrow in scope.  Admittedly the alternative in regulation 7(3)(b)(ii) is wider; but even that is hemmed about by restrictive language.  The condition must be applied "because of the nature of the employment and the context in which it is carried out" - which requires careful examination of the precise nature of the employment - "so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers".  Again this is in my view an objective, not subjective, test.  Further, the conflict to be avoided is with religious convictions, which must be strongly held; and they must be the convictions of a significant number of the religion's followers.  This is going to be a very far from easy test to satisfy in practice”

One point that does not appear to have been considered in this case or in the  Government Guidelines    is the possibility of a situation where the Religion or Belief Regulations  come into conflict with the Sexual Orientation  Regulations   .What happens if an employee (A)  is sincerely and religiously opposed to working with Homosexuals. If A  is obliged to work with a Homosexual fellow worker (B) does that breach A’s  rights under the Religion or Belief Regulations and if A is allowed  not to work with B does that breach B’s rights under the Sexual Orientation  Regulations  ?  One thing that can be said with certainty is that at some time an Employer and eventually a Tribunal is going to be faced with that conundrum   

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