The way ahead
The Fellowship of Independent Evangelical Churches is an association of 464 independent evangelical churches in the UK with a total membership of 21,000, and Sunday morning congregations totalling 32,000. It was formed in 1922.
The FIEC wishes to comment on a number of matters connected with the extent to which the proposed legislation will permit or not permit employers to discriminate on the grounds of religious belief and sexual orientation.
Our submission takes the form of a statement which it may be most convenient to regard as an answer to Question 21 of The Way Ahead: Response Form. We have set it out as such.
QUESTION 21
1. The position of staff in a Christian organisation who change their faith
The proposed Regulations allow Christian organisations to recruit employees on the basis of their faith position, both to reflect the ethos of the organisation, and to fulfil a genuine, occupational requirement. This is a just measure because in a religious organisation the staff are the most visible expression of what the organisation is about, and need to be fully in sympathy with its core beliefs, values and aims. Anything less would undermine the whole nature and purpose of the organisation.
However, as they stand the proposed Regulations do not allow religious organisations to dismiss staff who, once employed, radically change their faith position. Since the faith position is, in the first instance, a genuine occupational requirement, then a renunciation of that faith must surely be grounds for the organisation to terminate the employment. This would certainly be the case if a Labour Member of Parliament crossed the floor to become a Tory. He or she would be dismissed from any office held in government or in the party organisation. Similar opportunities to secure consistency should be available to religious organisations. How could the leaders of a Mosque be denied the freedom to dismiss a Muslim administrator who converted to Christianity, and who, in essence, now denied the doctrines to which Islam adheres?
We recommend that Regulation 7 in the draft legislation covering both religious belief and sexual orientation discrimination be amended to allow the exceptions which apply to recruitment to apply also to the termination of employment where circumstances require.
2. The breadth of the harassment provisions
The draft Regulations would make it easy for a disgruntled employee to take legal action against an employer for harassment on the basis of sexual orientation or religious belief. The Regulations are weighted in support of this possible action by an employee, and the employer is treated as guilty until proved innocent. In effect, the opinion of the plaintiff defines what constitutes harassment. In this respect, the draft regulations are weaker than the Directive itself.
We would suggest that the Regulations should be changed to include a reasonable objective definition of what constitutes harassment. Such a definition could contain words similar to the following:
harassment, where, on grounds of religion (or sexual orientation) A engages in unwanted conduct which has the purpose or effect of:
a] violating B’s dignity; or
b] creates an intimidating, hostile, degrading, humiliating or offensive environment for B
Allegations should be judged not on the basis of B’s subjective feelings but on whether a “reasonable person” would objectively conclude that the alleged behaviour constituted harassment.
3. Absence of guidance on what constitutes religious employment
Since the exceptions in the Regulations turn on the concept of “genuine, occupational requirement” it is only reasonable to expect the Regulations to provide clear guidance on what constitutes a religious ethos, employer or post. Employers need such guidance, as do employment tribunals. It would be unfair to organisations to be dependent upon the evolving decisions of courts and tribunals before they knew how the law actually applied to them. They need to make provision for the impact which this far-reaching legislation will have upon them, and that cannot reasonably be done under the Regulations as they stand.
We recommend that a new paragraph (4) is added to Regulation 7, indicating that in applying paragraphs (2) and (3), account should be taken of the organisation’s constitutional documents, contracts of employment, job descriptions, staff policies, mission and ethos statements, and the extent to which the staff are required by the organisation to uphold, reflect and promote its particular ethos.
4. The right of Christian organisations to refuse employment to a practising homosexual
Most religious employers hold a deeply-held conviction that homosexual practice is wrong. Christians derive their own belief and teaching regarding sexuality from the Bible, which teaches against the practice of homosexuality.
Since it is perfectly legal to believe the Bible, it would be most unjust and inconsistent to compel organisations to deny their own basic tenets by condoning among its staff a lifestyle which was directly in conflict with the authority for its beliefs and convictions.
A church can, rightly, legally dismiss a staff member, such as a minister, for heterosexual misconduct, since such conduct flies in the face of the marital fidelity churches preach and teach. It should also have the right to take action in respect of homosexual behaviour which equally contravenes the beliefs and biblical lifestyle being promoted and upheld.
It is accepted that someone may have homosexual tendencies, but may still be committed to the principle of biblical standards in the area of sexual conduct. This means that tendency and conduct are not descriptions of the same thing. In view of the fact that sexual misconduct by people of any orientation would be subject to equal discipline, the Regulations should make it clear that objecting to sexual misconduct does not amount to discrimination on the grounds of sexual orientation.
