Equality Bill

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John Mason: The hon. Gentleman used the word “oath”, which I think is interesting. Does he agree that we are looking for a pluralistic society? One example of that is that, in the courts and in this place, one can either take an oath or affirm. That gives a bit of flexibility. I do not agree with oaths as a religious person, although other religious people do, and people of no religion might also prefer to affirm. Is that not the kind of model that we should be looking for—one that provides some come and go, some flexibility?
Dr. Harris: I do not think that compliance with the oath is the relevant factor; it may just have been terms of employment. While I share the hon. Gentleman’s view about oaths, I do not want to be drawn down that path as I do not think that is the key point in that case.
The president of the Employment Appeal Tribunal went on to say:
“As to considerations of policy, direct discrimination of course cannot be justified.”
That is a key point and it provides the reason for me raising it with relation to the clause. As one can never justify direct discrimination, it is important that these cases are not found to be valid claims of direct discrimination.
The president of the tribunal continued:
“If the Tribunal were right to say that the fact that the claimant’s conduct was the result of her religious beliefs meant that she was being discriminated against on religious grounds, the employer could never justify any refusal to accede to an employee’s demands that he should be permitted to manifest his religious beliefs, however bizarre they may be. For example, an employee who refused to work on a particular day or days of the week for religious reasons, or who insists on praying at various times in the day, or who submits that carrying out various duties is incompatible with his or her religious doctrine, could in all cases be entitled to insist on doing these things and the employer would be obliged in all cases to accede to these demands.”
In other words, there is not the objective test that is allowed in claims of indirect discrimination.
The president concludes on that point, making reference to Ms Mountfield, counsel for the borough:
“As Ms Mountfield put it, the religious belief would be a solvent dissolving all inconsistent legal obligations owed to the employer. That plainly cannot be right. Indeed, given in particular the fact that beliefs may cover a vast range of subjective opinions, the consequences would be extraordinary.”
I hope that the Committee understands my particular concerns about this.
I finish on the point about the European convention on human rights. Lord Hoffmann, in Regina v. Denbigh High School, another school uniform case, is cited in paragraph 122 by the president of the EAT:
“Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing”.
It has been argued that, regardless of what our discrimination law says, this should be claimable indirect discrimination to preserve the right to manifest one’s religious belief in accordance with article 9, but as members of the Committee will know, the right to manifest religious belief under paragraph 2 of article 9 is qualified, unlike the right to hold the belief itself and to believe what one wants to believe.
The president, in paragraph 127 of his judgment, quotes from the judgment of Justice Munby in R (E) v. Governing Body of JFS—Jews Free School—and others, an interesting judgment on other matters. The president says that
“it is important to realise that reliance upon religious beliefs, however conscientious the belief and however ancient and respectable the religion, can never itself immunise the believer from the reach of the secular law, and invocation of religious beliefs does not necessarily provide a defence to what is otherwise a valid claim. Some cultural beliefs and practices are simply treated by the law as going beyond the pale.”
That is not a criticism of religion or of the lady in the Ladele case; it is just a statement that we cannot operate proper employment practice if people can claim direct discrimination on the basis of not being allowed to do something that their religion tells them to do, having to do something that it tells them not to do or not being prohibited from doing something it tells them not to do, which is not what the employer wants them to do.
I accept that the phrasing of the amendment might not be appropriate, but it is designed to be not only an antidote to the point made in amendment 36 and new clause 3 by the hon. Member for Glasgow, East but an invitation to the Minister to give her view on whether the Employment Appeal Tribunal—which, unlike some other bodies, sets precedents—is appropriate in this respect.
I have not had time, nor do I think I have the competence, to go into the two-stage test that the hon. Member for Glasgow, East quoted in detail, but it addresses the same sorts of issue. It may well be considered in another place if there is any doubt about the matter.
To save time, I will deal with amendment 36 and new clause 3, because I know that we are keen to make progress. I note that amendment 36 argues that
“less favourable treatment includes placing tighter restrictions on expression related to religion or belief than on expression not related to religion or belief.”
I do not think that that is helpful, because it is generally in cases of religion and belief that tensions between the strands arise. It is unusual for someone to manifest their race in a way that engages the rights of non-discrimination of people in other strands. It is one of the features of religion that its beliefs and manifestations can cause tensions in other strands, and it is our job, and the job of Parliament more broadly in dealing with the Bill, to get that balance right.
I hope that the hon. Gentleman accepts that such matters arise in religion, and religious people must be able to make a claim of indirect discrimination, but that direct discrimination is not the place for it.
New clause 3 is of even greater concern. It says:
“A public authority shall permit personal religious expression by those working for the authority to the greatest extent possible, consistent with requirements of law and the interests of workplace efficiency.”
Obviously, the Minister will give her own response, but I think that the argument will be that
“consistent with requirements of law”
makes the new clause essentially unnecessary, as the law is what we are debating. If the provision were to mean anything, it would, almost by definition, fall outside the requirements of the law.
The new clause needs to be considered, but why should personal religious expression trump anything else, if that is the intention of the new clause? The worry is what the new clause would mean and that the hon. Member for Glasgow, East is essentially saying that there could be a general right of conscientious objection for doctors not to prescribe contraceptive pills to women who are not married, not to treat patients who have alcohol problems on the basis of a religious objection to alcohol and a series of other things.
I strongly believe that that should not be permitted in the delivery of a public service. It should not be allowed in the medical profession beyond the existing statutory exemption that applies to abortion services, which I support. Otherwise, we will end up with a broken-up health care system, where individuals have to shop around for someone willing to give treatment that complies with their religious belief.
The object of new clause 3 is something we should resist absolutely, for the reasons that I have given. What effect it would have in practice is a moot point, given the caveat
“consistent with requirements of law”.
I look forward to hearing the views of other members of the Committee.
5.45 pm
John Mason: Thank you for the opportunity to speak under your chairmanship, Lady Winterton. As I did this morning, I want to make it clear that when I speak on religious matters, I am generally speaking on my own behalf, not that of my party.
I tabled the amendments so that the Committee would have an opportunity to discuss the place of religion in our society. To pick up on the final point made by the hon. Member for Oxford, West and Abingdon, it is not my desire for religion to trump other protected characteristics, but it is my desire that religion should not be trumped by them.
Amendment 36 would make it clear that it is a form of direct discrimination to treat religious speech less favourably than non-religious speech. They should be treated equally. It would reinforce freedom of speech for religious people by requiring that any restrictions imposed on free speech are not biased against religion. I hope that most hon. Members will think that that sounds fair. The question is whether it is necessary.
I would like to refer to two cases that have not been mentioned so far. The first is that of a woman called Caroline Petrie. She follows the Christian faith and works in Somerset as a nurse. In December last year she was suspended from work because she offered to pray for a patient. Although the patient was not upset by the offer, she mentioned it to another nurse, who reported the matter. Mrs. Petrie was subsequently accused of breaking nursing guidelines by failing to
“demonstrate a personal and professional commitment to equality and diversity.”
There was a degree of publicity about the case, and eventually the primary care trust invited the nurse back to work. Is it really harmful for a nurse with faith, who cares about her patients, to offer to pray for them? Surely that is not so unacceptable.
Dr. Harris: I do not want to be drawn too specifically into that case, but I accept that it is germane to the amendment. From the point of view of a professional body, it is inappropriate for a health care professional to seek to impose their personal views on a patient. That is stated clearly in the general medical code of practice for doctors, “Duties of a doctor.”
There is nothing to stop a nurse praying for a patient. It does not have to involve the patient’s knowledge, and as I understand it, religious people would argue that it does not weaken the effectiveness of a prayer if the person prayed for does not know about it. Neither is it inappropriate for someone who is religious to accede to a request made to them by a patient if they so choose. However, in strict, professional terms, it is not appropriate for them to initiate that conversation, as that is not the job of a health care practitioner but the job of a priest. I do not understand why the nurse in this case, who as I understand it had engaged in that practice before and had been warned about it, could not desist from offering unsolicited prayers to patients. There is freedom of belief and freedom of prayer, but there is not the freedom to impose one’s views on a patient.
John Mason: I suppose that I have a problem with the phrase, “seek to impose.” I do not think that Mrs. Petrie was seeking to impose anything. She was offering another skill that she had. A similar example would be her offering some extra bit of care to the patient—if she was an expert in massage, for example. However, I would have thought that offering is slightly different from seeking to impose.
The idea that prayer is only the job of a priest takes us down an interesting route as far as religion is concerned. With regard to my background, we did not believe in priests as such, in that we thought that all believers were of equal value and could do all of those things. I would not accept something contrary to that.
Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): I take the opportunity of my Whip’s being absent from the Committee to intervene. The hon. Gentleman said that offering to pray was not the same as an imposition, but surely a person who is ill in bed and feeling vulnerable and unwell is not in a position to debate whether they want to be prayed over. It is one thing for a patient to ask for a nurse to pray over them. Personally, I would not want to be prayed over, willy-nilly, if I was lying ill and frail in bed.
John Mason: I take the hon. Lady’s point. A large part of nursing is about sensitivity and getting to know the patient, among other things. I agree that there could be a time when such behaviour was clearly insensitive, but I suggest that at other times it could be perfectly sensitive and helpful.
I have just realised that I did not answer a question asked by the hon. Member for Oxford, West and Abingdon. Yes, I do believe that prayer makes a difference, whether the person is or is not there to be prayed for.
Mrs. Petrie was not alone in finding that expressing her religion could be hazardous for her livelihood. In March this year, David Booker, a Christian charity worker in Southampton, was suspended under diversity rules after a conversation in which he answered a colleague’s questions about his religious beliefs on sexual ethics. Mr. Booker had worked as a hostel support worker for four years. His bosses told him that expressing his religious beliefs on same-sex unions broke the charity’s culture and diversity code of conduct.
As I have said, the hon. Gentleman is not a great fan of religion, but he was generous enough to say on Second Reading that he defended Mr. Booker’s rights to express, in moderate terms, his religious beliefs about sexual ethics.
Dr. Harris: I should explain that, having researched Mr. Booker’s case as far as I can, on the facts as I know them, and no Committee member knows the full facts of either of those cases, which are likely to be fact-specific, the suggestion is that his conduct broke the code of practice—I do not think that the case has been decided yet—designed to prevent people from being harassed. That is really a question of whether the definition of harassment in work, as reflected in an employee’s code of conduct—if it was indeed reflected in such a code—is too broad. Before people dive for suspensions, there ought to be a little more scope to discuss with a colleague, in moderate terms, their religious views on a lonely nightshift.
I hope that the hon. Gentleman will concede that that is entirely different from a health care professional dealing with a vulnerable patient who has not asked any questions at all, and is suddenly asked whether they are gay, for example. What does he think about a Christian saying to someone who is gay, “I’ll pray for your soul,” knowing that position? That is a different matter. I hope that he recognises that.
John Mason: I accept that the two cases are different. However, in both cases, whether it is an employee or a patient—or anybody else—one wants there to be sensitivity. One of the ideas of Christianity is that one is loving and sensitive, and so on. I have been in situations where one just would not talk about religion or sex, or anything, with some fellow employees, because it would be a disaster, whereas it would be possible to chat with other people in the pub or during a tea break, for example.
I understand that the “Pink News” website spoke out in Mr. Booker’s defence. It ran a piece that concluded:
“Whatever the outcome of this case, it seems increasingly apparent that people have more of a right to be gay than to be religious.”
We can argue about the details of the law—where it has been and where it is—but there is a feeling in society that religion is the poor relation in some cases.
My amendment does not seek to stop employers placing limits on speech. It asks the employers to be even-handed. No employer wants inflammatory speech in the workplace. I am perfectly comfortable with that as long as employers are consistent. If they want to ban all divisive conversation in the workplace, they should apply that ban without fear or favour, whether the subject is music, politics or football rivalries.
A ban on divisive or offensive speech would not fall foul of the amendment, as long as it was applied consistently to religious and non-religious speech alike. The amendment is not limited to employment, but would apply to a definition of direct discrimination on religion or belief grounds for the whole Bill. It would, therefore, apply to the actions of all those who were bound by the Bill, such as local authorities and the police.
As an aside, I hope that the amendment sends a signal to those local authorities that think that religious equality means banning Christmas and such like. They would have to ensure that they were not applying one rule for expressions of secularism and another for expressions of religion. I accept that it is already arguable that imposing unfair restrictions on religious speech constitutes direct religious discrimination, but with all such cases, if we want to tackle real, live injustices, it seems that we have to make the obvious more obvious. I could have cited other cases.
I hope that the Minister accepts that there is evidence of a problem that needs addressing. As I said, there is a feeling that religion is the poor relation in equality law—the equality strand that dares not speak its name. We should not have to state something so obvious in the definition of indirect discrimination in clause 13, but with cases of religious people coming off second best when acting fairly reasonably, it seems that we have to do something to correct the imbalance that has come about in the interpretation and application of equality law.
New clause 3 underlines what has already been said. It is based on the guidelines issued by Bill Clinton in 1997 on freedom of religious expression in the federal work place—that is something practical, which has been used elsewhere. As I said, I do not want religion to trump other protected characteristics, I just want us to have mutual respect.
Finally, amendment 221 would amend the definition of direct discrimination in clause 13. An explanatory note cites the case of Lillian Ladele, who was a Christian marriage registrar. As I understand it, in July last year, at first instance, the employment tribunal found in Miss Ladele’s favour. Its ruling listed various acts of direct discrimination committed against Miss Ladele by Islington council on the grounds of her religious belief: failing to consider her for promotion; deciding to discipline her and threatening her with dismissal; concluding that she had committed gross misconduct; failing to redress allegations that she was homophobic, and labelling and treating her as homophobic; disregarding her concerns about her treatment; and failing to apply its anti-discrimination policies to gay colleagues who were mistreating her. The employment tribunal also found that the council
“disregarded and displayed no respect for Ms Ladele’s genuinely held religious belief”
and that it created an
“intimidating, hostile, degrading, humiliating or offensive environment for her on grounds of her religion or belief.”
However, in December last year, the Employment Appeal Tribunal overturned that ruling. It accepted that Islington had acted in an improper, unreasonable and extraordinary manner:
“There were clearly some unsatisfactory features about the way the council handled this matter. The claimant’s beliefs were strong and genuine and not all of management treated them with the sensitivity which they might have done.”
However, the tribunal ruled that it did not amount to religious discrimination. It seems extraordinary for the Employment Appeal Tribunal to say that the young lady was badly treated in connection with her sincere religious beliefs, but that she should have no redress whatsoever.
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