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Employment discrimination

The 2010 Equality Act also replaces the Employment Equality (Religion or Belief) Regulations 2003 prohibits direct or indirect discrimination on grounds of belief. Work-place harassment based on religion is illegal; the protection applies to lack of faith as well as any specific affiliation. Some organisations and occupations are exempt, however, and thus churches can discriminate in favour of believers for many posts. Case law is likely to develop on what ‘genuine occupational requirements’ may override the general rules.

Common issues in employment include recruitment, work schedules, food, holidays, uniforms or dress codes, inappropriate social activities, prayer rooms, and offensive behaviour.

Although some church personnel may be employees, parish clergy, of all churches, are regarded as ‘office-holders’ and not employees. In particular circumstances the effect of classifying someone as an office-holder may be to give greater security of tenure because of the special requirements to be met before the office-holder can be removed from office. This can be illustrated by the position of many Anglican clergy, whose removal from office is very difficult to bring about because the vicar of a parish holds ‘the benefice’, a legal concept which includes rights to the office and its stipend and to the house provided for its holder. By way of contrast, those Anglican clergy who do not possess the freehold have much less security. In other churches the freehold concept does not exist, and there is more need to invoke the protection of the secular law and the issue as to employment of office-holding is more commonly raised in those churches. There have been similar decisions involving non-Christian bodies, one involving the granthi of a Sikh temple, the other a rabbi.

Section 23 of the Employment Relations Act 1999 gave power to the Secretary of State for Trade and Industry to extend certain employment rights to ‘atypical’ workers, which includes ministers of religion. The rights concerned include defined leave entitlements, procedural safeguards such as a written statement of terms of service and of pay, access to dispute resolution procedures, and – most significantly – access to Employment Tribunals to claim unfair dismissal or breach of the other guaranteed rights.

The churches at present enjoy certain exemptions from the scope of the legislation on sex discrimination. Thus the relevant sections of the 2010 Equality Act and previous Sex Discrimination Act 1975 does not apply to employment ‘for purposes of an organised religion where the employment is limited to one sex so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers’. The scope of this exemption is being reviewed in the light of the amendments made to Council Directive 76/207/EEC on the implementation of the principle of equal treatment by European Parliament and Council Directive 2002/73/EC of 23 September 2002. Similar provisions apply in respect of discrimination on grounds of sexual orientation.

For more information, see DOE Norman, "Law and relgion in the workplace: the United Kingdom" in RODRÍGUEZ BLANCO Miguel (ed.), Law and religion in the workplace, Proceedings of the XXVIIth annual conference of the European Consortium for Church and State Research, Alcalá de Henares, 12-15 November 2015, Granada, Comares, December 2016, p. 379-403.

D 11 September 2012    ADavid McClean

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