Sexual Orientation in the Workplace

by Hazel Phillips

It is clear that issues concerning religion and belief are becoming more and more common in the world of work. This article looks at how the religion of the employer can have an impact upon the employment relationship.

The case of Reaney v Hereford Diocesan Board of Finance recently made the headlines when the Diocese’s refusal to employ a gay job applicant was challenged. The Diocese argued that the role fell within one of the lawful exemptions to the Employment Equality (Sexual Orientation) Regulations 2003 (“the Regulations”) These rules stipulate that workers must not be discriminated against on the grounds of their sexual orientation.
 
The Diocese argued, they could refuse to appoint the applicant on the grounds of his sexuality. The Regulations allow requirements regarding sexual orientation if the job is ‘for purposes of organised religion’ and the requirement is applied ‘so as to comply with the doctrines of the religion’ and ‘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’ (Regulation 7(3)).

In this case, the job applicant had applied for the position of Diocesan Youth Officer for the Hereford Diocese. The applicant had been honest in his job application and had informed the Diocese that he was gay and that he had left his last job in the Chester Diocese, as his same sex relationship had caused problems with some in the Church. By the time that the applicant applied for the job in Hereford he was single.

The applicant was short listed for the job. At the interview all the applicants were asked whether they could comply with the need to be celibate and the applicant replied that he was not in a relationship and that he had no intention of entering one. Following the interview, the applicant was unanimously recommended for the job by the panel of interviewers. The applicant was told that the Bishop of the Diocese just needed to confirm the position before the job offer was made official.

The Bishop held a further meeting with the applicant in which he quizzed him with regards to the need for celibacy. The Bishop was concerned that since the applicant had been in a relationship prior to applying for the job, then he may not be able to comply with the requirement that whoever took the post had to remain celibate. The applicant gave further assurances that he could but that if another relationship did develop then he would speak to the Bishop about the subject further. Following this conversation the Bishop decided that the applicant could not be relied upon to remain celibate and the job offer was withdrawn.

The applicant made a claim to the employment tribunal on the grounds that the interrogation by the Bishop amounted to harassment. He also claimed that the withdrawal of the job offer was less favourable treatment and amounted to direct discrimination on the grounds of his sexual orientation.

The tribunal held that the meeting with the Bishop did not amount to harassment, but that the applicant had been subjected to less favourable treatment. The tribunal reached the conclusion that the applicant would not have had to undergo extensive questioning regarding his personal life, had it not been for his sexuality. The tribunal found that the true reason that the Bishop was not prepared to accept the applicant’s assurances with regards to his celibacy was due to his sexuality and that he would not have been so disinclined to believe the applicant had the applicant been heterosexual.

It was held that the requirement that anyone employed in this post should be celibate was exempt from the rules under the ‘organised religion’ exception, but that it was not reasonable in all the circumstances for the Bishop not to be satisfied that the applicant would be able to remain celibate for the duration of the post.

This case shows that the organised religion exemption is likely to encompass roles outside the clergy but that the question of sexuality is likely to remain a difficult subject to deal with. Most employers are aware that when interviewing candidates, only objective criteria should be used. However, this case should serve as a warning that making personal judgements about an applicant’s lifestyle or values, particularly once the applicant has expressly stated an opposing view, will always be dangerous.

For further information on sexual orientation and religion or belief in the workplace, contact the employment law team of Burnetts Solicitors on 01228 552222.

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Sept 2007