Joint Committee on Statutory Instruments Twenty-First Report

Appendix 3

Draft Employment Equality (Religion or Belief) Regulations 2003: memorandum from the Department of Trade and Industry

Draft Employment Equality (Religion or Belief) Regulations 2003

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 were.

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:

· The 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.

· A 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.

· A 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

previous page contents

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 13 June 2003