David Tredinnick MP

Chairman

Joint Committee on Statutory Instruments

Delegated Legislation Office

House of Commons

7 Millbank

London SW1P 3JA

16 May 2003

Dear Mr Tredinnick

Employment Equality Regulations 2003

I have been given to understand that the Joint Committee on StatutoryInstruments is due to meet next Tuesday to consider the draft EmploymentEquality (Sexual Orientation) Regulations 2003 and the Employment Equality(Religion or Belief) Regulations 2003.

The Employment Equality Regulations 2003 were originally drafted withthe aim of combating harassment and bias in the workplace on grounds ofsexuality and religion or belief and the Governments intention in this matterwas widely welcomed. On 2nd May 2002 ina letter to me the Minister, Barbara Roche MP, wrote that:

the proposal is that the organisation will be able to justifytreating an employee (or prospective employee) differently on the grounds ofhis or her religion or belief only where it can demonstrate that the treatmentconcerned is justified by reference to the need to preserve its ethos

Some religious organisations will have a view on sexual orientationand its place in their ethos. Our legislation implementing the Directive willnot affect the right of a religious organisation to require its employees toact in good faith and with loyalty to its ethos. It will, in limitedcircumstances, permit the different treatment of an employee on the ground ofhis or her religion or belief, but will not allow discrimination on anotherground, such as sexual orientationan organisation will not be able to justifydismissal of an employee simply because it discovers that he or she is gay orlesbian.

The NUT is concerned that the attitude of the Government to this issuenow appears to have changed significantly. When the Statutory Instruments werelaid before parliament, however, new Regulations had been inserted whichfurther reduce protection for employees.

New Regulation 7 (1) (c) of both sets of draft regulations adds to theexemptions from protection the dismissal on the grounds of religion or beliefand sexual orientation respectively. This means that not only prospectiveemployees but also existing employees could be legitimately discriminatedagainst or dismissed on the basis of their religion or belief or sexualorientation if the employer can demonstrate a "genuine occupationalrequirement" relating to religion or belief or sexual orientation. Theexemption has also been widened to excuse employees from liability fordiscrimination where the employer is not satisfied that the employee orprospective employee meets the requirement of being of a particular religion orbelief.

New Regulation 7(3) of the draft Employment Equality (SexualOrientation) Regulations 2003 now states that an exemption applies where:

the employment is for purposes of an organised religion;

the employer applies a requirement related to sexual orientation

so as to comply with the doctrines of the religion, or

because of the nature of the employment and the context in which it iscarried out, so as to avoid conflicting with the strongly held religiousconvictions of a significant number of the religions followers; and

either

the person to whom that requirement is applied does not meet it, or

the employer is not satisfied, and in all the circumstances it isreasonable for him not to be satisfied, that that person meets it.

The inclusion of this statement has major implications for teachersemployed in faith schools and Academies. Organisations with a religious ethosemploy around 200,000 people with 100,000 of them in faith schools.

The NUT is concerned that the Employment Equality Regulations 2003 as currently drafted no longer meet therequirements of the EU Directive 2000/78/EC and may not be compliant with theHuman Rights Act. They could beinterpreted as giving employers new rights to ask questions about the sexualityof the people they employ and to reduce the rights and legal protection ofstaff in faith based schools - thus increasing the potential for costlylitigation which schools and LEAs can ill afford.

I would be very grateful, therefore, if you were able to bring theseconcerns to all the Members of the Joint Committee prior to their scrutiny ofboth sets of the draft Regulations.Please do not hesitate to contact me, or my office, if any furtherinformation would be helpful.

Yours sincerely

Doug McAvoy

GENERAL SECRETARY

cc. Martyn Atkins, Commons Clerk

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