Leaked document to UK shows European Commission’s view of some aspects of Equality Directive

The Irish Human Rights and Equality Commission could not get access to the Reasoned Opinion sent by the European Commission to Ireland about our failure to comply with the Employment Equality Directive 2000/78, because it is a confidential document.

However, the European Commission also sent Reasoned Opinions to other Member States at around the same time. One of them was sent to the UK in 2007, and that was leaked in Britain in 2010, and has been published by the UK’s National Secular Society.

It gives some insight into the Commission’s legal interpretation of two particular issues. Remember, these are issues that remained problematic after the letter of formal notice to the UK, and the UK’s response to the letter of formal notice.

The first issue is Instruction to Discriminate

This particular issue is not relevant to the Irish law. However, the principle that the Commission is using to address the issue is relevant to the Irish law. That principle is the requirement of legal certainty.

The relevant quote is:

“8. As the Commission pointed out in the letter of formal notice, the European Court of Justice has consistently held that provisions of Directives must be implemented with sufficient clarity and precision to satisfy the requirements of legal certainty.”

The second issue is Genuine and Determining Occupational Requirements

This issue is relevant to the Irish Bill, not because of the behaviour being addressed, but because of the scope of organisations that can be caught up in the Directive’s requirements.

The UK had in place a provision allowing certain types of “employment for the purposes of an organised religion” to be exempt “in order to comply with the doctrines of the religion or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.”

The key point here, from the perspective of the Irish Bill, is that the Commission did not accept the idea that “employment for the purposes of an organised religion” is of itself exempt from the requirements of the Directive. Whereas the Irish Bill allows religions per se (as opposed to schools and hospitals run by them) to evade the restrictions required by the Directive.

The relevant quotes are:

“15. Under Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, the Commission noted that an employer can apply a requirement related to sexual orientation in respect of employment for an organised religion in order to comply with the doctrines of the religion or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

16. As the Commission noted in the letter of formal notice, these provisions are based on Article 4.1 of the Directive, the general provision allowing differences of treatment where a particular characteristic is a genuine and determining occupational requirement of the job in question. The provision contains a strict test which must be satisfied if a difference of treatment is to be considered non-discriminatory: there must be a genuine and determining occupational requirement, the objective must be legitimate and the requirement proportionate. No elements of this test appear in Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003.

17. The Commission has read carefully the arguments of the British authorities, in particular the reference to the judgment of the High COurt in the case R(Amicus) & Others v The Secretary of State for Trade and Industry. As regards regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, the UK points out that the exception as regards religious organisations is limited to “organised religions” and cases of incompatibility with “doctrines of the religion” or in order to avoid conflict with strongly held beliefs of a significant number of religion’s followers.

18. The Commission maintains that the wording used in Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003 is too broad, going beyond the definition of a genuine occupational requirement allowed under Article 4.1 of the Directive. The Commission reiterates its view, expressed in the letter of formal notice, that the rationale behind Article 4.1 is not the exclusion of “negative” characteristics. Furthermore, the wording of the national legislation contradicts the provision under Article 4.2 of the Directive which provides that permitted differences of treatment based on religion “should not justify discrimination on another ground”.”

As an aside, note that the Commission is using the test from 4.1 (“genuine and determining occupational requirement”) and not the test from 4.2 (“genuine, legitimate and justified occupational requirement”).

Background to the Reasoned Opinion

This Reasoned Opinion came after a domestic challenge to the UK regulations by trade unions in the UK. This is described in a paper on Religious Liberty and the Employment Sections of the Equality Act 2010 by Jerold Waltman at Baylor University.

This paper described the case as follows:

In order to implement this Directive, the U.K. promulgated The Employment Equality (Sexual Orientation) Regulations 2003, which set up sweeping bans on against employment discrimination based on sexual orientation. However, Section 7(3), which was not in the original draft but added at urging of the Archbishops’ Council of the Church of England, contained an important exception. The prohibitions would not apply if
(a) the employment is for purposes of an organized religion;
(b) the employer applies a requirement related to sexual orientation—
(i) so as to comply with the doctrines of the religion, or
(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers; and
(c) either— (i)the person to whom that requirement is applied does not meet it, or (ii)the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied that that person meets it.

This section of the Regulations was immediately challenged in court by a number of trade unions in what became known as the Amicus case. The grounds for the challenge were twofold: that it did not comply with the Directive, in that it was much too broad, and that it violated Articles 8 and 14 of the ECHR. The court, however, dismissed the complaint. The judge argued that Section 7(3) must be read narrowly, and that it was therefore both “legitimate” and “proportionate.” In essence, these requirements were being read into the regulations despite their absence. For example, he held that “for the purposes of organized religion” was a narrower construction than “a religious organization.”

Furthermore, he iterated that the two tests of Section 7(3)(b) were objective, and that the burden of proof would be on the body claiming the exception. He quoted with approval the statement of a government minister:

“We believe that Regulation 7(3) is lawful because it pursues a legitimate aim of preventing interference with a religion’s doctrine and teaching and it does so proportionately because of its narrow application to a small number of jobs and the strict criteria it lays down . . . [We have] in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion. . . [The tests] will be met in very few cases.”

In short, 7(3) was valid, but only if read in light of the demands of the Directive. However, this was not the end of the matter. From time to time, the EU Commission sends Reasoned Opinions to the governments of the member states. Ordinarily, these are kept confidential between the Commission and the government concerned. In 2007 the Commission sent one of these to London regarding Section 7(3) (along with some other matters).

Embarrassingly for the government, considering what happened later, the Commission added that “The UK Government has informed the Commission that the new Equality Bill currently under discussion before the UK Parliament will amend this aspect of the law and bring UK law into line with the Directive.” Somehow, this Reasoned Opinion was leaked to the public in January of 2010.

The paper on Religious Liberty and the Employment Sections of the Equality Act 2010 by Jerold Waltman goes on to describe the future development of this case in English law.

It is very complex, with the UK Government’s eventual position being defeated in the House of Lords, and this happening in the run-up to an election, and the law being preserved to the satisfaction of many in the religious lobby although it restricted their autonomy.

But the above part is what is relevant up to the point at which the European Commission sent its Reasoned Opinion to the UK.

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