1. Introduction

In English Law there are now six distinct strands of unlawful discrimination, namely in relation in to race, gender, disability, religion and belief, sexual orientation and age.

This legislation pervades most activities by bodies carrying out a public function, especially in relation to the provision of goods, facilities, services and premises.

The Equality Act 2006 (“the Act”) established a new Equality and Human Rights Commission which is reviewing the Anti-Discrimination Law as a whole, and is likely to come forward with proposals for the eventual rationalisation and streamlining of the law.

This guidance note deals with two substantial changes in the law that came into effect throughout Great Britain on the 30^th April 2007. Under Part 2 of the Equality Act 2006 (“the Act”), it is now unlawful, subject to certain exceptions, to discriminate on grounds of religion or belief in relation to the provision of goods, facilities and services (and some other matters). Under Part 3 of the Act and the Equality Act (Sexual Orientation) Regulations 2007 (“the Regulations”), discrimination on grounds of sexual orientation in relation to the provision of goods, facilities and services (and some other matters) is unlawful, again, subject to certain exceptions.

This note is designed to offer some basic advice to Parishes and Incumbents. As with other notes of this type, it is not intended to be a comprehensive or as a substitute for specific legal advice in any given situation. If any particulars occur, the advice of the Diocesan Registrar should always be sought.

2. Discrimination on Grounds of Religion or Belief

Religion and belief in the context of the Act means any religion or any religious or philosophical belief. It can also refer to a lack of religion and a lack of belief.

Under the Act, discrimination is defined in three ways. It can be:-

• i. Direct Discrimination: Treating less favourably than one would treat others in similar circumstances, where the less favourable treatment is on the grounds of that person’s religion or belief, or the religion or belief of someone else (such as the person’s spouse/partner, etc). Direct discrimination includes treating someone less favourably on the grounds of a religion which the discriminator thinks that they belong to, or a belief which the discriminator thinks that they hold, even if this is not, in fact, the case. Also because religion or belief is defined as including a lack of religion or belief, this form of discrimination can also result from treating less favourably because they have no religion or subscribe to no beliefs at all.
• ii. Indirect Discrimination: Applying a provision, criterion or practice which, although applied generally to everyone – puts people of a particular religion or belief at a disadvantage compared with other people in similar circumstances, and which cannot be reasonably justified by reference to matters other than religion or belief.
• iii. Victimisation: Treating a person less favourably because they intend to bring, or have brought, a claim for unlawful religious discrimination under Part 2 of the Act (or are suspected of intending to do so/ of having done so). It also includes treating a person less favourably because they intend to give, or have given, information or evidence in relation to a claim under Part 2 of the Act, or are suspected of intending to do so/of having done so.

3. Activities under the Act in which discrimination is unlawful

And the provision of goods, facilities and services

Under the Act it is unlawful for a person concerned with the provision to the public, or a section of the public of goods, facilities or services to discriminate against another person who seeks to obtain or use those goods or facilities by:-

• i. By refusing to provide that person with goods, facilities or services.
• ii. By refusing to provide that person with goods, facilities or services of a quality which is the same as or similar to the quality of goods, facilities or services that are normally provided to the public or a section of the public to which the person in question belongs, or by refusing to provide goods, facilities or services in the same manner, or on the same terms, on which those goods, facilities or services are normally to the public or a section of the public.

Unfortunately, goods, facilities and services are not defined in the Act, but should be interpreted widely to include anything which the person or organisation concerned provides to the public. It therefore includes the ministrations of the Church, access to the Church building itself, as well as other facilities offered to the wider community, such as food, drink, junior church groups, etc.

4. Premises

It is unlawful to discriminate against a person on the grounds of religion or belief in relation to permitting them access to and use of premises. This would prohibit discrimination in relation to the lettings of Church Halls, or even the sale of former Church Halls.

5. Other Unlawful Acts

The Act also contains various other practices which are declared discriminatory. The most significant being that it is unlawful for a person or organisation to operate a practice which would be likely to result in unlawful discrimination if applied to persons of any religion or belief. One example that has been given is a policy requiring all men to remove their headgear before entering a Church. As the Church building is open to the public, this might amount to a discriminatory practice because of the requirement for men of certain other religions to keep their heads covered. It would be irrelevant whether or not anyone from another religion is so affected actually into the Church. The very fact that a Notice has been displayed ….

The remaining two unlawful acts are that it is unlawful to publish an advertisement that indicates an intention to discriminate unlawfully, and it is unlawful to instruct, cause or attempt to cause, or induce, or attempt to induce, another person to discriminate unlawfully on grounds of religion or belief.

6. Exceptions for religious organisation

Religion or Belief

The Act does provide that it is possible for certain religious organisations to impose restrictions on the activities contained in Part 2 of the Act that otherwise amount to unlawful discrimination.

The organisations that can take advantage of the exceptions will include most of the bodies that make up the Church of England, including Cathedrals, Diocesan bodies, Diocesan Board of Finances, Parochial Church Councils and most Parochial Charities.

The only other qualifying factor is that these exceptions are not available to organisations whose main purpose is commercial. This would mean that it would not affect Parochial Church Councils, but it would govern any trading companies set up by Parochial Church Councils, notwithstanding the fact that the Parochial Church Council may be the sole or majority shareholder. The letting out of Church halls by PCC’s and Parochial Charities would not mean that they would be unable to take advantage of the exceptions, as the lettings take place when the halls are not required for Church use. It is important to ensure that the lettings are simply ancillary to the organisation’s religious purposes.

The Exceptions

A religious organisation that can take advantage of the exceptions is permitted to do the following:-

• i. Restrict membership of the organisation.
• ii. Restrict participation in activities undertaken by the organisation on its behalf or under its auspices.
• iii. Restrict the provision of goods, facilities or services in the course of activities undertaken by the organisation or on its behalf, or under its auspices, or
• iv. Restrict the use or dispose of the premises owned or controlled by the organisation.

A minister or religion is additionally permitted to:-

• i. Restrict participation in activities carried out in the performance of his or her functions, or
• ii. Restrict the provision of goods, facilities or services in the course of activities carried out in the performance of his functions.

The restrictions set out above are only permitted, however, if they are imposed:-

• i. By reason or on the grounds of the purpose of the organisation, or
• ii. In order to avoid causing offence on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.

Practical Implications of the Exceptions

7. Membership

It is suggested that as the Church of England is not a Church that has any membership criteria, this particular exception has limited relevance. However, the issue of membership does arise in relation to an individual’s right to go on the electoral roll of the Parish in which he or she resides. The difficulty with this is that the issue of membership is not defined by the Church itself, but rather a declaration by the applicant that he or she is a member of the Church of England. Consequently, there is likely to be little need for the imposition of a restriction in relation to membership, especially as membership of the Church of England is not by any formal membership criteria. It may be that for separate charities links to the Church of England restricting membership to that organisation would be a sensible idea, but only if that group considered that it came within the definition of an organisation relating to religion or belief, and that it was imposing the restriction on one of the permitted grounds.

8. Activities

Whilst it is theoretically possible for restrictions to be imposed relating to activities carried out by the relevant bodies that make up the Church of England, it should be borne in mind that all Parishioners, irrespective of their religion or belief, are legally entitled to attend services in their Parish Church. Consequently, an attempt to limit attendance at certain service, for example, to those of a particular religion or belief would be unlikely to be justifiable for the reasons set out above.

9. Goods, Facilities and Services

As the Act allows the restriction upon the provision of goods, facilities and services, this could permit an Incumbent to lawfully refuse to provide a service of blessing to a couple who had married in a Register Office and were members of a non-Christian religion, or not to admit holy communion persons who were not qualified under Canon B 15(a) (this is confirmed members of the Church of England or those who have been otherwise Episcopal confirmed, baptised persons who were communicate members of other Churches which subscribed to the doctrine of the Holy Trinity and who are in good standing in their own Church, any other baptised person authorised under Regulations in the General Synod and any baptised person in immediate danger of death).

10. Premises

It is possible that a PCC or Parochial Charity could lawfully refuse to let out its Church Hall for use by other religious; however, as the restrictions only permit such a lawful refusal if one of the two grounds set out above have been satisfied, the PCC or Parochial Charity need to be entirely satisfied that one or both of these grounds are met before imposing any such restriction. If one or either of those grounds are not met, it would amount to unlawful discrimination under Part 2 of the Act.

11. Religious Charities

Many religious charities will qualify as religious organisations within the meaning of the Act, and therefore will be in a position to take advantage of the exceptions that apply to religious organisation set out above. The Act provides further exceptions for religious charities to enable them to comply with the terms of their “charitable instrument” (Trustee, Constitution, Memorandum and Articles of Association, etc). Nothing in Part 2 of the Act makes it unlawful for a religious charity to provide benefits only to persons of a particular religion if that restriction is imposed by the charitable instrument and the Charities acting under the instrument. So, for example, a charity established to make grants to the clergy of the Church of England would not be acting unlawfully in refusing to consider applications from clergy of other denominations (or other religions).

This document has been based on guidance received from the Diocesan Registry, who should be consulted for more detailed guidance.

January 2009