Anti-discrimination regulations: Fight Concessions To The Religious Right

LESBIAN, GAY, bisexual and transgender (LGBT) people have long been campaigning for equal treatment at work. A key obstacle has been that courts found lesbian and gay people do not fall within existing anti-discrimination laws.

Lionel Wright, MSF-AMICUS and convenor, Socialist Party LGBT Group

As a result workers took cases to Europe. When Lisa Grant sued South West Trains the Labour government sided with the company, saying anti-discrimination legislation would be a ‘burden’ for employers. In parliament, back-benchers tried to table such laws only to see the government block them for ‘undermining the family’.

Then in 1999 the European Union introduced the Employment Framework Directive. Under this, states have to introduce legislation by the end of 2003 prohibiting discrimination against lesbian, gay and bisexual (LGB) workers (earlier a European legal victory by a transgender (TG) worker forced Britain to introduce basic measures against workplace discrimination of TG employees).

Last month after a consultation process, the government published the draft Employment Equality (Sexual Orientation) Regulations. LGBT trade unionists and rights campaigners will welcome the fact that in future employers will not be able to dismiss a worker because they are lesbian gay or bisexual or refuse to employ a person on grounds of sexuality.

Similarly, under the draft regulations, promotion cannot be withheld from an employee for being lesbian, gay or bisexual and bosses can no longer refuse to take action to prevent anti-gay bullying or harassment of LGB staff.

Employment benefits available to heterosexual workers must be extended to LGB employees. However, regulation 29 gives a blanket exception to employers for benefits linked to marital status such as survivors’ benefits under occupational pension schemes. As benefits related to marital status make up a large part of remuneration packages in many jobs, the current draft regulations mean LGB workers would continue to receive second-class treatment because we cannot marry same-sex partners.

Campaigners have identified other difficulties with the regulations. People whose jobs involve work outside the UK, eg the oil and drilling industries, will not be covered. The situation where a worker who is assumed to be lesbian, gay or bisexual experiences anti-gay discrimination is mentioned in guidance notes but not in the main regulations, which will carry legal weight. A ‘reasonableness’ test is proposed for harassment cases. This will be discriminatory if it leads to Employment Tribunals without LGB members making arbitrary judgements from their own life experiences.

However, the biggest problem is the sweeping exemption given to religious employers in regulation 7. The EU Directive provided for a limited exception known as a ‘Genuine Occupational Requirement’ (GOR), which was a ‘genuine determining and proportionate reason for requiring an employee to be of a particular sexual orientation’. If the government had actually drafted the regulations to implement the Directive, this exception might have covered a vicar but not the church caretaker.

But during the consultation process, the Archbishops’ Council of the Church of England demanded an almost complete exemption from the regulations. They are now worded so broadly that religious employers will be able to sack or refuse to employ anyone who doesn’t reflect their religious ‘ethos’, defined in the regulations as: “any religion, religious belief or similar philosophical belief”.

An employment lawyer told the Daily Telegraph “The law is already confused about what constitutes a ‘belief’, and that is before the perplexing new provisions have even come in”.

The lesbian and gay employment rights campaign LAGER commented: “Regulation 7, which appears to be in direct contravention of the European Framework Directive was not included in consultation drafts. This leaves LAGER… feeling that we have been deceived and that the whole consultation process was a complete sham”.

UNISON said “It seems the government believes that equality stops at the church gates”.

The LGBT Trades Union Congress and trade unionists generally must call on the trade union movement nationally to protest over the draft LGB employment regulations and demand that the concessions Labour has made to the religious right are scrapped before the regulations enter law.