UK legal threat over faith employers' LGBT discrimination

The European Commission has confirmed to the Liberal Democrat European justice & human rights spokeswoman, London MEP Sarah Ludford, that it is actively pursuing the UK government for possible infringement of European Union employment equality law over a religious test which may in particular exclude LGBT staff. Sarah Ludford commented:

"The Commission seems at last to be actively doing something about what I believe is a blatant UK breach of EU equalities law. Personal religious faith and religious freedoms must be respected, but not at the expense of others' civil liberties and the UK must be made to bring its regulations into line with EU norms."

"One of the mysteries of the last 12 years has been the inexplicable caving-in of a Labour government to religious prejudices. It is unacceptable that bodies such as faith schools should be allowed to use a religious pretext to discriminate against people who are gay or of other religions."

The EU Employment Framework Directive 2000 prohibits discrimination on the grounds of religion, age, disability and sexual orientation. It permits some limited exception for religious-based institutions, allowing religion as a genuine occupational requirement or a requirement on staff 'to act in good faith and with loyalty to the organisation's ethos'.

But Sarah Ludford believes that UK regulations go too far in the latitude given to religious bodies to bar from recruitment people who are gay or of a different religion. She has thus campaigned against unlawful discrimination and put a series of parliamentary questions to the European Commission over the last 18 months. In 2006 UK legislation extended the power of faith schools to discriminate when employing not only teaching staff but also non-teaching staff such as caretakers and cleaners. In addition, religious employers can refuse to hire gay staff in order 'to comply with the doctrines of the religion'.

The latest European Commission reply confirms that 'under an ongoing infringement procedure, the Commission is continuing its analysis of the United Kingdom's transposition of Directive 2000/78', that a meeting took place with UK authorities in July and that 'the Commission will decide before the end of 2009 on any further steps concerning the infringement procedure relating to (the) Directive'.

ENDS.

Note for editors

This is the text of Sarah Ludford MEP's question to the Commission and the subsequent response:

In my Written Question P 1019/09 of 12 February 2009, which followed my Oral Question H 0190/08 of 26 February 2008 and Written Question E 5125/08 of 16 September 2008, I asked the Commission whether the UK has properly implemented the Employment Framework Directive 2000/78/EC, and in particular whether the UK Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003 and Education and Inspections Act 2006, Section 37, and any accompanying government guidance or employer practice breach the provisions of the directive by allowing unlawful discrimination against current or prospective staff who are gay or of a different religion.

In his reply of 3 March 2009, Commissioner Špidla replied that 'the analysis of the transposition of Directive 2000/78/EC by the United Kingdom (UK) was still ongoing' but that the Commission would, 'if necessary and appropriate, use its powers to ensure compliance with the EC Treaty, should it find that UK laws go beyond the exceptions allowed under that directive'.

Has the Commission now at last finalised its assessment of the UK's compliance with Directive 2000/78/EC? Is the Commission bringing infringement proceedings against the UK? If not, can the Commission explain precisely how UK law complies with the directive's criterion of 'a genuine, determining occupational requirement which fulfils a legitimate objective and which is applied in a proportionate manner'.

How can the Commission (if it does) regard as compliant UK law which allows faith schools to exclude from their employment staff of a different religion without satisfying the above criteria and indeed to reserve not only all teaching and head teacher posts but also non-teaching posts, such as those of caretaker and cleaner, for those of a requisite faith?

Similarly, how can UK law which allows a religious body to discriminate on grounds of sexual orientation 'so as to comply with the doctrines of the religion' or 'so as to avoid a conflict with the strongly held religious convictions of a significant number of the religion's followers' possibly satisfy the directive's test of 'a genuine, determining occupational requirement which fulfils a legitimate objective and which is applied in a proportionate manner' or the directive's further stipulation that a religious test 'should not justify discrimination on another ground'?

Answer given by Mr Špidla on behalf of the Commission:

Under the ongoing infringement procedure, the Commission is continuing its analysis of the United Kingdom's (UK's) transposition of Directive 2000/78/EC. It also refers the Honourable Member to its answers to her questions P-1019/09 and H-0190/08 and writetn question E-5125/08 by Ms Badia i Cutchet, in which it pointed out that Directive 2000/78/EC allows exceptions to the principle of non-discrimination in a limited number of situations, in particular as regards occupational requirements of religious-based institutions.

The Commission held a meeting with the UK authorities in July 2009, in particular to discuss the new Equality Bill currently before the UK Parliament. In the light of that meeting and written replies from the UK authorities, the Commission will decide before the end of 2009 on any further steps concerning the infringement procedure relating to Directive 2000/78/EC. The Honourable Member may rest assured that the Commission will take due account of the points raised in questions addressed to it.