Why this constitutes illegal discrimination

by
25 July 2007

Simon Sarmiento sets out how the employment tribunal found against the Bishop of Hereford

‘The tribunal said: “Bishop Priddis’s position is untenable”’

An Employment Tribunal decided unanimously last week that the Bishop of Hereford, the Rt Revd Anthony Priddis, had illegally discriminated against John Reaney on grounds of sexual orientation (News, 20 April). A further claim of harassment by the Bishop was unanimously dismissed.

Under the Employment Equality (Sexual Orientation) Regulations 2003, it is illegal for an employer to treat a job applicant less favourably because of his or her sexual orientation. This is called direct discrimination. It is also illegal for an employer to have selection criteria or policies that have the effect, whether intentional or not, of disadvantaging people of a particular sexual orientation. This is called indirect discrimination.

For “organised religion” there is a limited exemption, allowing an employer to apply “a requirement related to sexual orientation”. This must be “to comply with the doctrines of the religion” or “so to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers”. English law makes no distinction between sexual orientation and sexual behaviour (or “lifestyle”).

Mr Reaney was recommended by an eight-person panel as the undisputed best candidate for the job. But he had stated in his application that he was a homosexual, and that he had until recently been in a same-sex relationship.

The Bishop therefore made further enquiries and interviewed Mr Reaney himself. He asked Mr Reaney if he would remain celibate while employed by the diocese, and Mr Reaney said he was prepared to do exactly as the Bishop requested.

The Bishop nevertheless rejected Mr Reaney for the post, because he did not consider Mr Reaney was in a fit emotional state to make such a commitment. He argued that this was not discriminatory, as he would have made the same judgment of a heterosexual candidate with a history of a recently terminated long-term extra-marital relationship.

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The tribunal found that direct discrimination had occurred. It said:

. . . if the question is asked whether, but for his sexual orientation, the Claimant [Mr Reaney] would have been treated as he was, the answer is “No”. . . Bishop Priddis would not have considered that further questioning was necessary if the Claimant’s homosexuality had not been raised.

. . . if the question is asked whether, but for his sexual orientation, the Claimant [Mr Reaney] would have been treated as he was, the answer is “No”. . . Bishop Priddis would not have considered that further questioning was necessary if the Claimant’s homosexuality had not been raised.

The tribunal went on to consider the religious-exemption clause. It agreed with the Bishop that the Diocesan Youth Officer post, because of its specific duties, did fall within that small number of posts outside the clergy which are within the regulation’s scope.

Yet it also found that Mr Reaney did meet the requirement as set out in Issues in Human Sexuality (CHP, 1991): he was happy to remain celibate for the duration of the post. Further, it found that there was no good reason — indeed, it was unreasonable — for Bishop Priddis not to accept that this was the case.

The tribunal said:

In an ordinary employment context, a potential applicant for a job cannot give cast-iron guarantees as to circumstances which may happen in the future. We consider that once this is appreciated, then Bishop Priddis’s position is untenable . . .

In an ordinary employment context, a potential applicant for a job cannot give cast-iron guarantees as to circumstances which may happen in the future. We consider that once this is appreciated, then Bishop Priddis’s position is untenable . . .

We do not think that it would be in accordance with the Issues [in Human Sexuality] statement to require a lay person to commit to celibacy. Whatever the reason, we consider that it was not reasonable for Bishop Priddis to be satisfied that the requirement was not met.

We do not think that it would be in accordance with the Issues [in Human Sexuality] statement to require a lay person to commit to celibacy. Whatever the reason, we consider that it was not reasonable for Bishop Priddis to be satisfied that the requirement was not met.

So the exemption for an organised religion did not apply in this case, and the claim of direct discrimination therefore succeeded.

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The tribunal then went further, and said: “If it is necessary, we would hold that there has been indirect discrimination in this case” because the requirement that the appointee

“. . . must live a lifestyle which conforms to the doctrine and teaching of the Church as set out in the resolutions of the General Synod, the Lambeth Conference and the House of Bishops teaching document Issues in Human Sexuality” was agreed by the diocesan lawyers to be discriminatory:

“. . . must live a lifestyle which conforms to the doctrine and teaching of the Church as set out in the resolutions of the General Synod, the Lambeth Conference and the House of Bishops teaching document Issues in Human Sexuality” was agreed by the diocesan lawyers to be discriminatory:

The Respondents also accept that, insofar as it would not be possible for the Claimant to choose to marry, it is accepted that a person of same sex sexual orientation as the Claimant would be placed at a particular disadvantage when compared with others.

In a claim of indirect discrimination, a lawful defence of justification may be offered. But unfortunately the Bishop’s lawyers had failed to include this topic in the list of matters for the tribunal to consider, which all parties had agreed before the hearing. The tribunal understandably rejected an attempt to amend this oversight late on the final day of the hearing.

It was not claimed that the Bishop had intended to harass or humiliate Mr Reaney, but rather that, at a meeting on 19 July 2006, there was “unwanted conduct which had the effect of violating the Claimant’s dignity or created a humiliating environment for him”.

The tribunal unanimously concluded that this part of the claim should be dismissed. It did note, however, that:

There is then a dispute about whether the Bishop asked the Claimant about future relationships. . . We prefer the Claimant’s evidence of recollection on this matter.

There is then a dispute about whether the Bishop asked the Claimant about future relationships. . . We prefer the Claimant’s evidence of recollection on this matter.

The tribunal found the facts of this case so compelling that it found in Mr Reaney’s favour without needing to rely on the discriminatory nature of the underlying Church of England policy of “marriage or abstinence”. The marker laid down here, however, and the inherent difficulty of proving justification, suggests that any future case might well succeed in a claim of indirect discrimination.

On the other hand, the ease with which this tribunal accepted that this officer-level post fell within the ambit of the religious exemption will be of concern to those who had imagined that only top-level lay employees in dioceses and at the National Church Institutions were affected.

Simon Sarmiento is a former personnel director of a large computer-software company.

The full conclusions in the judgement can be found by clicking the link below.

Simon Sarmiento is a former personnel director of a large computer-software company.

The full conclusions in the judgement can be found by clicking the link below.

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