In December last year, the Government introduced the Employment Equality (Sexual Orientation) Regulations 2003 outlawing discrimination on the basis of sexual orientation.

A number of unions, backed by Thompsons, challenged the new regulations. In R (on the application of Amicus-MSF section and others) v Secretary of State for Trade and Industry (2004, IRLR 430), they argued that some of the exemptions were incompatible with the obligations under the EC Equal Treatment Framework Directive 2000, and conflicted with provisions of the European Convention on Human Rights.

Although the High Court rejected that challenge (see LELR 90), some of its comments have bolstered the trade union view of the limitations of the exceptions. In particular, it emphasised that the scope of the 'organised religion' exception is very restricted.

What regulations were challenged?

The exceptions challenged were: 

  • Reg 7(2) - being of a particular sexual orientation is a genuine and determining occupational requirement; it is proportionate to apply that requirement; and the employer is reasonably satisfied that the person does not meet it
  • Reg 7(3) - the employment is for the purposes of an organised religion and the employer applies a requirement related to sexual orientation to comply with the doctrines of that religion or would allow them to avoid coming into conflict with the strongly held convictions of a significant number of the religion's followers.
  • Reg 25 - benefits that depend on being married.

What did the court say about regulation 7(2)?

Trade unions were concerned that this exemption, which is not directly reflected in the underpinning directive, might lead to stereotypical assumptions by employers about a person's orientation from, say, their appearance.

The judge, however, found that the rationale for the exemption was sensible. He said that an employer is not bound to accept, at face value, the answer that someone gives when asked whether they meet the requirement to be of a particular sexual orientation.

The requirement of reasonableness ensures that decisions cannot lawfully be based on stereotypes.

What did the court say about regulation 7(3)?

The government more or less conceded that regulation 7(3) should have a very narrow application, only applying to those in pastoral roles within relig-ious organisations. In its view, ministers and priests would be covered by the regulation, but not teachers in faith schools.

The judge accepted this approach. He said that the exemption has to be construed very narrowly, and drew a dis-tinction between employment for the purposes of a religious organisation, and employment based on religious belief. A teacher in a faith school would not be regarded as employed 'for the purposes of an organis-ed religion', and so would not be covered by the exemption.

In terms of ministers in a church, the test would not be the assessment of an individual employer, but an objective assessment by reference to the actual doctrines of the religion. As the judge notes, 'that is very narrow in scope'.

The judgement will be influential when tribunals come to interpret the application of the exemption in any particular case. For example, teachers in a faith school, aid workers for a voluntary organisation, staff in a religious bookshop or even church cleaners can rely on the regulations if they are discriminated against on the grounds of sexual orientation.

What did the court say about regulation 25?

Regulation 25 states that the provisions of the regulations do not affect benefits dependent on marital status. The trade unions argued that this provision would discriminate against gays and lesbians.

Although the judge found in the government's favour on this point, he said that he did not find the issue easy to resolve.