Equality Bill

The noble Lord is right; hopefully, it will mean that the law can be easily read. Amendment 125A would provide an exception for religious or belief organisations, or persons acting on their behalf, to impose restrictions because of sexual orientation on the provision of any services or functions being provided on behalf of a public authority. As noble Lords have rightly mentioned, we have a significant number of religious or belief organisations providing valuable services, often aimed at meeting particular requirements in some sectors of the community. I take issue with noble Lords who say that that is not the case and that the Government have not done a great deal to support those organisations in their work. Under existing law, these organisations have a limited number of exceptions enabling them to refuse to provide a service or a function to gay, lesbian or bisexual people. We believe that this exception is entirely appropriate but only where such restrictions are necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the religion or belief that the organisation represents. Where a relevant religious or belief organisation is delivering a public function, however, that exception does not apply. This is because, while the Government are sensitive to people’s religious beliefs, in circumstances where public money is being used to fund a service we take the view that the service should be provided to people irrespective of their sexual orientation, and I hope that the right reverend Prelate would agree with that. That is also the view of the Joint Committee on Human Rights, which welcomes the re-enactment and clarification of the existing provisions in Schedule 23(2) that concern discrimination on the basis of sexual orientation. The committee considers that there is nothing in any human rights standard that requires an exception to be provided to permit religious organisations to discriminate because of sexual orientation when delivering services on behalf of a public authority. By contrast, the law enables the relevant religious or belief organisations to limit their service provision to people who have a particular faith or belief even where those services are being provided as part of a public service. This difference in treatment is for a valid reason. For example, a local authority that contracts out its provision of care for the elderly in an area with a large Jewish community may well choose to use the services of both a Jewish care home and a secular care home. We see that as entirely legitimate, provided that all those in need of care—I think the noble Lord, Lord Elton, made the point that we should address ourselves to those who need the care—are provided with it and to the same standard. The exceptions as they are drawn and already operating provide the correct balance between the rights of those of a given sexual orientation to receive public services and not to be discriminated against and the freedom of others to manifest their religion or belief. For example, it is entirely legitimate that a local authority should contract with a Muslim organisation to provide meals on wheels that are halal. We cannot envisage any circumstances in which a religious organisation providing a public service could legitimately be allowed to provide it only to those of a given sexual orientation. This exception is designed to ensure that vital activities of such religious or belief organisations are not unduly hindered. Many of these organisations are used by local authorities because they provide specific services of a nature that the local authority itself cannot, or they do it in a better and more cost-effective way. I turn to Amendments 101A and 101B. The amendments would mean that a religious organisation would be unable to require its employees to be of a particular religion or belief if they were acting as a public authority on behalf of, or under contract to, a public authority. Again, I make the point that religious organisations play an important role in bringing diversity to public life and the delivery of services that meet the needs of diverse communities. We recognise that such organisations need to be able to preserve their religious ethos. Schedule 9(3) allows them to have regard to their ethos when applying an occupational requirement for an employee to be of a particular religion or belief. Carefully targeted exceptions are an important means of allowing religious organisations to pursue their legitimate objectives. It is important to stress that we are not doing anything new in the Bill with regard to the exception. We are preserving an existing exception in the Employment Equality (Religion or Belief) Regulations 2003, which implement EU directive 2000/78/EC on establishing a framework for equality in employment. A number of people seem to think that this exception gives religious organisations carte blanche to require all employees to adhere to their particular faith. This is simply not the case. I hope that I will be able to address the issues that my noble friend Lord Warner has raised in the next set of remarks that I make. I will then amplify them by writing to the noble Lord. The principal function of a care home is the provision of care, not as a vehicle for a religious organisation to proselytise. That means that most of its employees are providing care. As I said, the exception requiring employees to be of a particular faith is not carte blanche for every employee to be required to be of a particular faith. On the contrary, it is very limited and will apply to only a very small number of posts. Its application will be subject to stringent tests. In practice, the further removed the function is from a place of worship—for example, the care home—the more difficult it is for those tests to be met. The EU directive specifically recognises religious employers as a special case. This is an entirely justified exception. It is right that it should apply to all relevant employees and workers, including those working under contract for public authorities. It is worth noting that the relevant article in the EU directive refers specifically to both private and public organisations whose ethos is based on religion or belief. There is no question of broadening the exception through the Bill. It remains a tightly drawn exception applying to very few types of employment. Its application will continue to be subject to strict tests. The employer must show that requiring an employee to be of a particular religion or belief is an occupational requirement and that the application of the requirement is a proportionate means of achieving a legitimate aim. Lastly, the employer must be able to show that it has an ethos based on religion or belief. Any organisation choosing to rely on exemption needs to be able to justify its decision before an employment tribunal if challenged. As we are not introducing anything new in the Bill, there is no question of legions of public workers suddenly having to reapply for their jobs the moment this part of the Bill is enacted. My noble friends asked legitimate questions. What would happen where public service workers are transferred to contracted religious organisations from a public authority? Could they be made redundant or dismissed should their new posts have a religious requirement attached to it that they cannot meet? First, the strict tests that I have described would have to be met for the given post to have the exception applied to it. In the case of a care worker, for example, it is unlikely that it could be argued that he or she must be of a particular religion or belief for the purposes of the job unless the nature of his or her job goes beyond simply the provision of care. In most cases it would be sufficient that the employee should have some understanding or respect of the faith in question. In addition to those tests for attaching a religious requirement to a given post, the Transfer of Undertakings (Protection of Employment) Regulations 2006 would need to be taken into account by the new employer in this situation. The TUPE regulations provide protection for employees from dismissal as a result of transfer. The employee would be treated as being unfairly dismissed unless the reason for the dismissal was economic, technical or organisational. It is difficult to see how a dismissal simply based on an employee’s religious belief, or lack of it, could fall within the permitted reasons for dismissal under TUPE, as this is unlikely to constitute an organisational reason. As for the future prospects of public service workers who are transferred to a contacted religious organisation, in practice an occupational requirement that an employee be of a particular religion or belief applies to a very small number of cases. Again, the strict tests applying to the exception need to be met in every single case. Protection would be offered and would be discussed before that transfer of engagements was made. The Government’s view is that this exception strikes the right balance between protection—I hope that my amplification of this will reassure my noble friend—and allowing employers with a religious ethos the flexibility that they need. I turn now to Amendments 101ZA and 101C—