Draft Employment Equality (Religion
or Belief) Regulations 2003: memorandum from the Department of
Trade and Industry
Draft Employment Equality (Religion or Belief) Regulations
39. The Committee has asked for a memorandum from
the Department of Trade and Industry on the following points:
(1) Regulation 20 makes unlawful certain types
of discrimination by the governing body of a university or other
educational establishment specified in paragraph (2). There is
no limitation as to the type of course in respect of which the
discrimination is unlawful and, in particular, no limitation by
reference to the categories of training mentioned in Article 2.1(b)
of Directive 2000/78/EC ("... vocational guidance, vocational
training, advanced vocational training and retraining
40. Regulation 20 adopts the approach of applying
discrimination provisions to particular categories of educational
institutions in existing domestic discrimination law. In this
regard, the Committee's attention is drawn to section 22 (discrimination
by bodies in charge of educational establishments) of the Sex
Discrimination Act 1975 (c.65), by way of example. This institutional
approach is maintained in order to ensure that implementation
is both clear (to the individuals covered) and effective within
the context of the domestic education system. It would cause practical
difficulties for relevant institutions and individuals to attempt
to distinguish between different courses or to leave it to the
courts to establish in a series of cases over a number of years
whether individual courses were covered by the Regulations.
(2) Paragraph 63 of Annex B to the Explanatory
Memorandum laid before Parliament explains that so far as acts
relate to courses of study outside the Directive's scope, they
arise out of or are related to the Directive's obligations in
relation to vocational training. What is the Department's estimate
of the percentage of courses of study in England, Wales and Scotland
which are covered by the Regulations but are not courses of study
within the scope of the Directive?
41. The Department drew the Committee's attention
to the definition of vocational training as elaborated by the
European Court of Justice (ECJ) at paragraph 63 of Annex B to
the Explanatory Memorandum laid before Parliament.
42. The extent to which institutions falling within
regulation 20 provide courses falling outside the ECJ definition
would depend on the courses offered by each institution concerned.
The Department would only have access to figures reflecting publicly
funded training, and a significant number of courses meeting the
definition may be privately funded. The percentage would also
depend on the nature of the courses being delivered at any one
time, which varies. In addition, the definition is set out in
general terms, and so applying that definition to the facts of
a specific individual course would involve a considerable margin
of error until such time as a court gave a definitive ruling in
relation to that course. This renders the gathering of precise
statistics difficult. For this reason it is impossible to provide
a useful estimate of the percentage of courses covered by the
Regulations but which fall outside the scope of the Directive.
43. It remains the Department's view that most courses
provided in higher education and many courses in further education,
in the relevant institutions, will meet the ECJ definition.
(3) Please explain whether any significant amendments
were made to regulation 7 between the draft of the regulations
which was issued for consultation in October 2002 and the draft
which was laid before Parliament on 8 May, and if so, what they
44. The following amendments were made to regulation
7 between the draft issued for consultation in October 2002 and
the draft laid before Parliament on 8 May:
reference in regulation 7(1)(b) to "regulation 6(3)(b)"
was amended to "regulation 6(2)(b) or (c)". The amendment
was made to correct a drafting error.
new regulation 7(1)(c) was inserted, which provides for the genuine
occupational requirement ("GOR") exception to apply
to dismissal from employment. The amendment was made so that the
GOR exception should be available in a case where an employee's
religion or belief changes, such that he or she is no longer able
to satisfy the GOR, thereby justifying dismissal by the employer.
new sub-paragraph (c) was inserted in identical terms in each
of regulation 7(2) and (3). The sub-paragraph provides that, for
the exception in regulation 7 to apply, either the person in question
does not meet the GOR, or the employer is not satisfied, and it
is reasonable for him not to be satisfied, that that person meets
it. The amendment was made to clarify in more detail the circumstances
in which the exception can be relied upon.
(4) In relation to any such amendments, please
explain the extent of any further consultation undertaken; and,
if no such consultation was undertaken, why not.
45. The first amendment above reflected comments
received during consultation. The Department considered that it
was not a significant amendment of substance such as to require
further consultation. The second amendment filled a gap in the
legislation to which the Department's attention was drawn during
consultation. The Department considered that this technical change
did not require further consultation. The Department considered
that the third amendment was a clarificatory drafting change which
did not amount to a significant change of substance such as to
require further consultation.
(5) The draft Regulations do not yet appear to
have been made available on the HMSO website. Please explain why
not. In the absence of their appearance on the website, please
explain what arrangements have been made for those persons interested
in the draft Regulations to obtain copies.
46. The draft Regulations laid before Parliament
on 8th May were in duplicated form: that is, the final draft of
the Regulations drawn up, printed and copied by the Department.
After the formal consultation on draft regulations which concluded
on 24th January, officials and Ministers continued to consult
with interested parties about detailed policy and legal issues.
As a result, work on the drafting of the Regulations continued
until shortly before 8th May. For this reason, it was not possible
to obtain a corrected printed proof of the draft Regulations from
HMSO by 8th May. Only the technical process of typesetting and
correcting proofs of the draft Regulations has prevented a copy
from being placed on the HMSO website before now. The Department
and HMSO are working to make a copy of the regulations available
on the HMSO website as soon as possible. The Department has, however,
ensured that representative organisations with a close interest
in the Regulations were informed that they had been laid on 8th
May; and draft copies, together with the explanatory notes, were
circulated by email on that day. The Department has promptly met
all other requests for copies since then.
27th May 2003