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100 Chapter 3
doctrines of religion’ or ‘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 convictions of a significant number of the religion's
followers’.
The exemption to permit discrimination on the grounds of sexual
orientation has proved problematic, however. In R (Amicus MSF Section) v
Secretary of State for Trade and Industry, 117 several provisions of the 2003
Employment Equality (Sexual Orientation) Regulations were challenged
on the basis that they were too wide and so in breach of the European
Convention. Upholding the Regulations, Richards J found on the basis of
parliamentary statements that the Regulation 7(3) exemption was intended
to be ‘very narrow’, since it is a derogation from the principle of equal
treatment. 118 He was of the view that the term ‘organised religion’ referred
to in Regulation 7(3) was narrower than ‘religious organisation’:
employment as a teacher in a faith school, he stated, is likely to be ‘for the
purposes of a religious organisation’ but not ‘for the purposes of an
organised religion’. 119 In response to the averment that the Regulation 7(3)
exemption authorises discrimination in cases including that of a ‘school for
girls managed by a Catholic order [that] dismisses a science teacher on
learning that she has been in a lesbian relationship, reasoning that such a
relationship has been contrary to the doctrines of the Order’, 120 Richards J
held that on the narrow construction of the exemption favoured by him,
the exemption would not cover this case. 121 As Vickers comments, ‘[t]he
legislation as interpreted in Amicus provides a clear steer that religious
convictions can be used to justify discrimination on grounds of sexual
orientation or gender, but only in the strictly limited circumstances of the
appointment to clergy’. 122
Amicus seems to support the decision of the Equality Court in Strydom,
but there are reasons to question both the approach followed and its
applicability to Strydom's case. The reasoning of the UK High Court rests
substantially on the wording of the section 7(3) exemption, which is
expressed to be applicable to ‘organised religions’ but not to ‘religious
organisations’. Richards J held the former to be narrower than the latter,
such that although an ‘organised religion’ will also be a ‘religious
organisation’, a ‘religious organisation’ will not always be an ‘organised
religion’. But excluding religious organisations from the ambit of
117 [2004] EWHC 860.
118
R (n 117 above) para 115.
119 R (n 117 above) para 116.
120 R (n 117 above) para 95.
121
R (n 117 above) para 121.
122 L Vickers Religious freedom, religious discrimination and the workplace (2008) 142.