Lynne
Featherstone: The amendment is probing to establish to
what extent volunteers have the same protection from discrimination as
employees, and I hope that they have the same protections. Obviously,
the discrimination could not be between paid and non-paid workers, but
volunteers often have expenses, such as those for travel and lunch. I
am sure that there should be no discrimination between someone with a
disability, an ethnic minority person or a woman getting differential
expenses, but I would like that matter clarified, because it is unclear
to me whether volunteers will be protected from discrimination. I am
not sure whether the service or the type of employment will be
protected by part 3 when providing goods and services, but it is clear
that those who offer their services for free should not be
discriminated against, and I would be grateful if the Government
clarified that.
Mr.
Harper: I rise to speak to amendment 243 and new clause
19, which was tabled by my hon. Friend the Member for Daventry, who,
owing to his service on the Council of Europe, is unable to be in
Committee
today. As
the hon. Member for Hornsey and Wood Green said, the amendment probes,
as does the new clause, the extent to which volunteers will be covered.
If organisations rely heavily on volunteers and if all the rules in the
work section apply to volunteers, we want to ensure that, given the
nature of volunteeringthe length of the relationship and what
is invested in itwe do not make organisations less likely to
want to use volunteers. In particular, as we discussed in the previous
debate, the route back to work for some disabled people will involve
going straight from benefits to working in a full-time job, but the
route for others will perhaps involve taking up a volunteering
opportunity, then a part-time opportunity and then full-time work. For
many people, that is a successful route back into
work. The
amendment and new clause test what applies to employers. Not only do we
want employers not to discriminate, but we want them to use the
disability provisions. We want them to be able to favour disabled
people not just as employees but as volunteers, to provide
opportunities that will help not just the disabled people but our
overall goal of getting more of them back into work.
The amendment
and new clause are designed to check the extent to which this part of
the Bill applies to those who are volunteering their services to
organisations. Will it apply to volunteering in general, or will it
capture other types of volunteering, such as volunteering that is akin
to working, albeit without
pay?
The
Solicitor-General: The amendment and the new clause are
about whether we extend the protection from discrimination,
victimisation and harassment to volunteers. We recognise the
contribution of volunteering and believe that volunteers should be
treated with respect and care, but we do not legislate for volunteers
in exactly the same way as employees in the
Bill. First,
there is no clear evidence of systematic discrimination. The majority
of volunteers appear to be well managed. We have looked at the legal
rights of volunteers on a number of occasionsmost recently
exploring them in 2004, when a private Members Bill was
promoted by the hon. Member for Canterbury (Mr. Brazier).
Research from 2007 shows no suggestion of such discrimination, although
there may be some dissatisfaction in how voluntary placements are
organised. Secondly,
there is some protection. Volunteers are currently protected from
discrimination, victimisation and harassment in respect of the
provision of goods, facilities and services to the public. As
recipients of servicesfor instance, from an agency that
arranges placementsthere would be protection, which has been
extended to cover age. Such discrimination might be highly relevant.
Changing the laws proposed would provide a remedy in an employment
tribunal instead of a county court, but there is a remedy already.
Where the relationship between a charity or organisation and an
individual amounts to employment, there is protection under the
employment
provisions. A
practical difficulty in extending discrimination legislation across the
board is that volunteering can vary from regular daily routines in the
shop to driving someone to hospital from time to time. There is a wide
range of volunteering. In some cases, the organisation for which the
volunteer works may do little more than put a volunteer in touch with
someone who they may be able to help and then simply check up to see
that all is going well. There would be difficulties in drawing the
line, and there could be a chilling effect on the number of volunteers
if legislative burdens were imposed on such a diverse sector. However,
no one would wish that volunteers, who offer their time for free,
should be treated unfairly, and the Government are committed to
ensuring that that does not happen by continuing to monitor the
situation and to provide support and
guidance.
Lynne
Featherstone: I thank the Minister for her explanation,
which lays out the parameters exactly. I beg to ask leave to withdraw
the
amendment. Amendment,
by leave,
withdrawn. Clause
78 ordered to stand part of the
Bill. Schedule
8 agreed
to.
Schedule
9Work:
exceptions
John
Mason: I beg to move amendment 44, in
schedule 9, page 181, line 33, leave
out proportionate.
The addition of a new proportionality
test narrows the scope of existing exceptions for religious employment.
This amendment, in conjunction with the amendment to leave out
sub-paragraph (8), retains the status
quo.
The
Chairman: With this it will be convenient to discuss the
following: amendment 45, in schedule 9, page 181, line 37, leave out
proportionate. The
addition of a new proportionality test narrows the scope of existing
exceptions for religious employment. This amendment, in conjunction
with the Amendment to leave out sub-paragraph (8), retains the status
quo. Amendment
42, in
schedule 9, page 181, line 41, leave
out sub-paragraph (8) and
insert (8) Employment is
for the purposes of an organised religion
if (a) A has an ethos
based on religion or belief,
or (b) the employment wholly or
mainly involves (i)
leading or assisting in the observation of liturgical or ritualistic
practices of the religion,
or (ii) promoting or explaining
the doctrine of the religion (whether to followers of the religion or
to
others).. Sub-paragraph
(8) narrows the scope of existing exceptions for religious employment.
This amendment would instead broaden the scope of the exceptions to
benefit all religious
organisations. Amendment
43, in
schedule 9, page 181, line 41, leave
out sub-paragraph
(8). Sub-paragraph (8)
narrows the scope of existing exceptions for religious employment. This
amendment, in conjunction with the amendments to lines 33 and 37,
retains the status
quo. Amendment
189, in
schedule 9, page 181, line 42, leave
out wholly
or. Amendment
46, in
schedule 9, page 182, line 6, leave
out from requirement to if and insert
to which sub-paragraph (2)
applies. Place the
exceptions from paragraph 2 of Schedule 9 into paragraph 3, which has a
broader framework. This would provide wider protection for the freedom
of association of religious
bodies. Amendment
47, in
schedule 9, page 182, line 13, at
end insert (2) This
paragraph applies
to (a) a requirement to
be of a particular religion or
belief; (b) a requirement to be
of a particular sex; (c) a
requirement not to be a transsexual
person; (d) a requirement not
be married or a civil
partner; (e) a requirement not
to be married to, or the civil partner of, a person who has a living
former spouse or civil
partner; (f) a requirement
relating to circumstances in which a marriage or civil partnership came
to an end; (g) a requirement
related to sexual
orientation.. Place
the exceptions from paragraph 2 of Schedule 9 into paragraph 3, which
has a broader framework. This would provide wider protection for the
freedom of association of religious
bodies. Amendment
250, in
schedule 9, page 182, line 14, at
end insert 4 Paragraph 3
does not apply when A is
operating (a) on behalf
of a public authority, and (b)
under the terms of contract between the organisation and the public
authority.. An
amendment to ensure that users of public service provided by an
organisation with a religious ethos are not subject to conditions or
requirements of that ethos.
It
might be helpful to the Committee at the outset to indicate that many
of the issues have been discussed already and that discussions will
continue on the other groups of amendments. Therefore, hon. Members
could perhaps use some discretion, and we might not have a debate on
schedule 9 at the end if everyone is
content.
John
Mason: I take it that that was an indication that we
should not spend too long on the schedule and that I might not have as
many interventions as I was
anticipating. Amendments
44 and 45 would take out the new test of proportionality that has been
added to the sexual conduct exceptions for religious bodies. The test
does not appear in paragraph 7(3) of the Employment Equality (Religion
or Belief) Regulations 2003, which contains the previous incarnation of
the exception. I might as well just throw in at this point that I do
not speak on behalf of my party on this
issue. 5.30
pm There
is no reason for the Government to depart from the wording that was
agreed with religious groups in 2003, which has been on the statute
book for six years. Has there been a single employment tribunal case in
which a Church has successfully relied on the exemptions given in 2003?
Did any such cases involve discrimination that the Government believe
to be disproportionate and worthy of being outlawed? I would be
grateful if the Minister could answer those
questions. I
have some notes from the Church of England, which gave evidence to us.
It is probably not the most radical of the religious groups that we
meet day to day. One paragraph of its notes
states: It
seems to us that this risks involving the courts and tribunals in
having to address questions as to the precise nature and extent of
particular religious doctrines, or as to precisely how strongly
particular religious convictions were held. It would also mean that
having done that, the courts would have to go on to determine what the
effect of those doctrines or strongly held beliefs was in terms of the
details of the requirements that needed to be applied in order to
comply with them. This is exactly the territory into which the courts
are both reluctant and ill-equipped to
venture. Amendment
43 would remove the new definition of organised religion in paragraph
2(8) of schedule 9. The new definition, which, again, was not present
in the wording agreed with the Churches in 2003,
states: Employment
is for the purposes of an organised religion only if the employment
wholly or mainly involves...(a) leading or assisting in the
observation of liturgical or ritualistic practices of the religion,
or...(b) promoting or explaining the doctrine of the religion
(whether to followers of the religion or to
others). As
the Minister said last Tuesday, any lawyer knows that as soon as we
list anything, we narrow it. By listing what is regarded as organised
religion, the Government are narrowing the
exemption.
The
Solicitor-General: That is not what I said at all. I said
that by putting a list in, we could, by implication, leave out things
that people might have thought to be covered by the legislation. That
is not necessarily narrowing the legislation. I hope that that is
clear; if it is not, I will say it again in a different way. I made no
such assertion.
John
Mason: I can respond by basically agreeing with the
Minister. However, the fear is that the measure leaves outwe
might not want to say that this is
narrowingthings that might otherwise be expected
to be included. That is my point, and I think it is valid.
In Reaney
v. the Diocese of Hereford, Stonewall financed a legal action by
a homosexual man against the Church of England over his application to
become a diocesan youth worker. The judgment seemed peculiar and fudged
the issues. Mr. Reaney won on the particular facts of the
case, but the employment tribunal rejected the argument that the
exemption applied only to Church ministers, and ruled that Churches
could also require a youth worker to adhere to their doctrines on
marriage and celibacy. However, explanatory note 747 on page E182
insists that the new wording in paragraph 2 excludes youth workers. In
that case, the new wording is intended to narrow the
exception.
The
Governmentintentionally or unintentionallyhave got
religious groups very worried indeed. Both the Church of England and
the Roman Catholic Church gave evidence saying that they believed that
the Bill weakened protections that were designed to protect their
fundamental human right to manifest their religion.
Let me make
some comparisons that might help the Committee to understand better
where the Churches are coming from. If a Greenpeace employee was found
to be participating in the arms trade, surely he or she would be asked
to leave, because anything else would deny a basic tenet of the
organisation and expose it to ridicule. If the world knew that
Greenpeace employed such a person, people would cease to support it.
Similarly, if a political party researcher began campaigning for
another party, surely that person would not keep their job. To allow
someone so at odds with the party to remain in a position of influence
would be a breach of the original partys freedom of
association.
There is
something fundamental about working for an organisation with a strong
ethos. This could apply to any of the protected characteristics,
whether it is age, disability, LGBT status or anything else. There is
an expectation that all staff should be signed up to and enthusiastic
about an organisations direction. That affects the mood when
staff come to work in the morning, how they chat in the staff room and
so on. I am an accountant, but I have worked for nursing homes and
housing associations. One would expect everyone in a nursing home,
including the accountant, to be signed up to nursing and the welfare of
the residents. Similarly, in housing, one expects everyone to be signed
up to quality housing and the good of the tenants. In the same way, the
Churches should not have to employ people who, through their lifestyle,
repudiate important beliefs that the organisation exists to
promote.
Amendments
42, 46 and 47 would widen the scope of the religious exemptions. In the
Reaney case that I mentioned, the Diocese of Hereford was ordered to
pay £47,000 for refusing to appoint to a diocesan youth worker
position a man who had only recently ended a homosexual relationship
and who said that he might enter into another such relationship in
future. Everyone can see the difficulty in which that places the
Church. The case shows that the existing exceptions are not
sufficiently robust. My amendments demonstrate different ways of
wording the exemptions to provide better protection for religious
freedom of association.
Amendment 42
takes the religious ethos test from paragraph 3, which is a broader
exception, and places it into the definition of organised religion. A
body would
have to prove only that the employment was for the
purposes of an organisation with a religious ethos. The test is
acceptable to the Government in relation to religious discrimination,
so why not in relation to other grounds? The approach would make it
easier for religious bodies to prove that a particular post fell within
the sexual conduct
exception. Amendments
46 and 47 take the list of activities exempted by paragraph 2 of
schedule 9 and place them within the framework of paragraph 3. Again,
paragraph 3 protects a broader range of posts. That is by
far the neatest and most effective way of providing protection to
religious bodies that want to maintain their beliefs in their
employment policies. Some will say that both my approaches are too wide
and would benefit organisations and jobs that they do not think should
be covered, but we must be careful about telling religious
organisations which posts are important to their religion and which are
not. If they can pass the religious ethos test, we must leave it up to
them. I
note that the Conservatives have tabled amendment 189, which
would make the definition of organised religion marginally wider by
tinkering with the wholly or mainly test. Their
amendment highlights the arbitrary nature of the organised religion
test. A youth worker who spends 49 per cent. of his time teaching
doctrine is none the less not in a protected post, but if he
spends 51 per cent. of his time teaching, he is, so a Church
may be told by the state to employ as a teacher of their religion
someone who rejects its teachings all for the sake of 2 per cent. of
the workers time. The arrangement seems too arbitrary and
uncertain. There
are too many hoops in the exceptions for Churches to jump through, even
though they are designed to protect Churches fundamental human
rights. I hope that the Government will think again about some
of the issues.
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