Equality Bill

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Mr. Harper: The hon. Gentleman highlights an important issue, which the Minister could comment on when she responds, based on what the Employment Appeal Tribunal said. Notwithstanding its ruling, it made the point that some of the council management had not treated Ms Ladele properly. Where there are conflicting rights, one solution might be for the Equalities and Human Rights Commission guidance to advise employers and other organisations on how to behave and on possible steps to take to deal with employees sensitively. Rather than turning into divisive court cases, matters could be resolved internally within an organisation, with some give and take on the part of the organisation and the individual. That might be a proper subject for guidance. Will the Minister reflect and comment on that in her response?
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John Mason: I thank the hon. Gentleman for his intervention; he makes a very good point that we have touched on before: should there be some kind of purpose clause or something else dealing with conflicting rights? It is clear to the Committee that such situations have arisen in the past and could do so again.
Miss Ladele is taking her case to the Court of the Appeal, and some lawyers believe that the Employment Appeal Tribunal ruling is so extreme in its dismissal of manifestations of religious belief that she is likely to win—we shall see. Enshrining the EAT ruling in legislation as suggested by amendment 221 is therefore a bit premature. I was slightly taken aback by the explanatory note to the amendment, which states that its goal is to ensure that
“one cannot claim direct discrimination when one is treated adversely solely on the basis of behaviour stemming from a religious belief.”
Should people treated adversely owing to religious behaviour never be able to claim direct religious discrimination, no matter how gross and unjust? Surely that is not what we are aiming at. And does that not contradict the approach of the hon. Member for Oxford, West and Abingdon in amendment 217, which states that all behaviour stemming from sexual orientation should be protected? So behaviour stemming from religion should not be protected, but that stemming from sexual orientation should. I do not understand how that is fair.
Dr. Harris rose—
The Chairman: Order. I do not think that we can have another debate on amendment 217. The best way forward is for Mr. Mason to proceed.
John Mason: Thank you, Lady Winterton. That is fair enough.
The position underlined by the EAT ruling on Ladele, under which religious rights come last, is not acceptable. Whichever side of the argument we are on, we should not enshrine that position in legislation as suggested in amendment 221. We should be rebalancing these matters; but I shall return to that in later amendments.
The Solicitor-General: There is a theme to these amendments and the new clause around safeguarding the rights of religious-minded people. I must deal with them individually, however, because they all come from different angles. If the hon. Member for Oxford, West and Abingdon will bear with me, I shall deal first with the amendment and new clause tabled by the hon. Member for Glasgow, East.
Given that the hon. Gentleman’s amendment is to clause 13, his intention, as I think that he stated, is to make placing tighter restrictions on religious expression than on non-religious expression a form of direct discrimination. However, that is not possible, because direct discrimination, as defined in clause 13, means treating somebody less favourably owing to a protected characteristic, such as religion or belief. It is not about religious expression, but about having the characteristic of religion or belief. I shall try to dovetail my argument into the case law that he quoted. Let us imagine that an employer has a rule against employees expressing or promoting their religion or belief in the course of their work. Someone who broke that rule and was dismissed might claim that was less favourable treatment because of their religion or belief, but if they were dismissed for inappropriate promotion of their belief, the dismissal would not be unlawful discrimination within clause 13.
I do not know enough about the Booker case mentioned by the hon. Gentleman, nor about the other case, but it sounded as though those people were disciplined for breaking their employer’s internal code of conduct. That is different from being dismissed because of one’s religion or belief.
The case of Chondol v. Liverpool city council, an employment tribunal about this issue, was upheld by the EAT, which said that the
“distinction between, on the one hand, the Appellant’s religious belief as such and, on the other, the inappropriate promotion of that belief is entirely valid in principle (though of course in any case in which such a distinction is relied on it will be necessary to be clear that it reflects the employer’s true reason).”
So, that is different from dismissing someone because they hold a religious belief. Clause 13 is about providing protection to someone who is treated less favourably because of their religion or belief, so the amendment does not fit into it at all, and I ask the hon. Gentleman to withdraw it.
In a sense, the hon. Gentleman could afford to withdraw the amendment anyway, because most of what he seeks to encapsulate is in his new clause 3, which is intended to guarantee freedom of personal religious expression for those who work for a public authority, where those expressions of belief remain
“consistent with requirements of law”
and do not have an adverse impact on
“the interests of workplace efficiency.”
We do not think that the new clause would make any difference to the protection that is provided to people with a protected characteristic of religion or belief.
I have said this a number of times today, but I had better say it every time the hon. Gentleman alleges these things: we do not think that religious rights come last or that religion is persecuted. We do not think that religion is the poor relation or that religious expression is treated in an inappropriate way. We do not accept for a minute what seems to be his presupposition that religion is at the bottom of the pile overall.
John Mason: I kind of accept that about the Government’s intentions, but does the Minister accept that some employers who perhaps do not have such a detailed knowledge of the law tend to treat religion as the poor relation?
The Solicitor-General: I am not able to do an instant survey of employers to find out whether they put religion first, second, third or 57th. Anyway, what the hon. Gentleman is saying is not that, but that it is perfectly acceptable to the Government that religion should come bottom of the heap, and that that is what the Bill does, but I repudiate that lock, stock and however many smoking barrels there were in the name of the film—two I think.
I am sure the amendments are well meant, but they would not make any difference because the Bill replicates the position under current legislation and maintains a person’s right to hold and to express religious or non-religious beliefs. The measures are totally in line with article 9 of the European convention, which says that everyone has the right to freedom of thought, conscience and religion. There is no provision to prevent people from legitimately expressing their religious beliefs, whether in the context of employment by a public authority or anyone else, and we take the need to preserve the rights of religious liberty and free speech in every sector of society very seriously. Any legitimate freedom of expression will remain lawful as is required of us under article 10 of the European convention.
We are aware, as I think the hon. Gentleman is because of the nature of his new clause 3, that it is important to balance the right of freedom of religious speech with other protected characteristics. The measures are not about creating a hierarchy, but seek to strike a balance where there are potentially conflicting rights, such as between religion and belief, and sexual orientation. The provisions do contain a test of reasonableness to apply where there are issues that may be construed by some as harassment within the workplace: for instance, an atheist church cleaner offended by crucifixes on display because that is not the cleaner’s beliefs. An element of reasonableness has to be injected there, and the Bill does that, so as to balance the rights of religious expression, and the other rights.
The amendment itself acknowledges that some legitimate restriction may be imposed, perhaps on someone’s right to freedom of religious expression within the workplace. The new clause includes the proviso that the liberty has to be consistent with the requirements of law in the interests of workplace efficiency. We think that balance is already in the Bill and the right to religious expression is adequately protected. Amendment 36 to clause 13 should go, because it does not fit in that place at all. New clause 3 does not add anything and would not alleviate the concerns expressed, which I am sure we will debate again when we get to the schedules. I ask the hon. Gentleman not to press both the amendment and new clause.
Amendment 221, tabled by the hon. Member for Oxford, West and Abingdon, would have the effect of clarifying the fact that it is not unlawful to discriminate against people because of a manifestation of their religion or belief. In other words, it is not unlawful for A to discriminate against B because of a manifestation of B’s religion or belief.
Dr. Harris: I am grateful for the Minister’s response; I did not expect her to accept the amendment or even to recognise it as necessary. However, what she said was supportive, as far as it went—given her view that even though we are discussing legislation, she does not want to comment directly on a case that is going to further appeal—and I am relieved to hear that.
I want briefly to respond to a couple of points made by the hon. Member for Glasgow, East, because it is important to clarify that I, for one, do not believe that religion is—or should be—a poor relation. Nor is it a form of discrimination that dare not speak its name. Those sorts of cases are all over the Daily Mail. I am not seeking to damn him, by association, or the Daily Mail. Indeed, I am pleased to see that religious claimants are well resourced to bring cases through the Christian Legal Centre—that is their right. I just want us to be clear in advance so that employers are not dragged into the courts or scared of fighting a case.
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I am clear that, if there is outrageous behaviour—I do not think that Islington council was found guilty of this—against someone on the basis of their religion, that is harassment in employment and is rightly covered. I have not tabled amendments to weaken the harassment provisions, although I have some sympathy with the proposal of the hon. Member for Glasgow, East to change “or” to “and” in clause 24. I do not think that the fact that one cannot bring a claim of direct discrimination on the basis of a manifestation of religion means that employers are at liberty to treat people badly on the basis of their religious views. In fact, quite the opposite—and rightly so, in my opinion.
On the issue of a hierarchy, it is generally not the case that gay employers or indeed colleagues give religious people a hard time. There is not that sort of problem with religion being put upon by the other strands. It is just a question of recognising that sometimes there is tension. The way the Minister put it is right, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Dr. Harris: I beg to move amendment 219, in clause 13, page 9, leave out lines 21 and 22 and insert—
‘(6) It does not matter if the protected characteristic that B has is also shared by A.’.
The Chairman: With this it will be convenient to discuss amendment 218, in clause 13, page 9, line 22, at end insert—
‘(6A) If the protected characteristic is sexual orientation it does not matter whether the sexual orientation is also A’s.’.
This is to probe why the provision in Clause 13(6) which applies to religion and belief does not in fact apply to other strands.
Dr. Harris: The two amendments are probing, self-explanatory and explained by the Member’s explanatory statements. I could go into the history of where the provision first appeared and then did not appear in a previous version of the regulations, but I will not seek to do so. I think that the Minister is in a position to respond to the points on the basis of the amendment as written and the Member’s explanatory statements, and I look forward to hearing her response.
The Solicitor-General: It is not a defence, if a gay person, for instance, is discriminated against, to say, “It is not discrimination, because I am being myself.” There is no such defence at all. I hope that that is sufficient for the hon. Gentleman’s purposes.
Dr. Harris: I would be grateful if the Minister could directly answer the question as to why the provision appears in respect of religion but is not expressed in respect of sexual orientation or indeed the other strands. I think that she is saying that the same applies to all the others, even though it is not written. If she is saying that, that is useful. I would be grateful if she could confirm that and explain whether there is a reason why that is not included. As I have admitted, I am not going to press the amendment, but it was proposed in the spirit of wanting to hear whether there is a reason why religion and belief is picked out in the way it is.
The Solicitor-General: The provision is not new. Clause 13(6) is there because there are religions with different sections and different kinds of adherence to the religion. Judaism and Islam, for instance, encompass a range of views from orthodox to liberal and moderate. The extremes in differences in outlook and lifestyle are considerable within those religions, with the attendant potential for discrimination by some of the followers of another sector. That is why there is a separate provision for religion.
I can reassure the hon. Gentleman that the interest groups that he talks to regularly, apart from that sector, are not aware of any potential for difficulty in other strands. Even if they were, the Bill protects that situation. That is why the religion provision is different from the others. As a woman, it is no defence say, “There cannot be discrimination against another woman.” In fact, if I have discriminated against her, it is discrimination—end of.
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