Arpita Dutt

This week saw a landmark victory for a gay youth worker against the might of the Anglican Church.

An employment tribunal decided that Kevin Reaney, a gay man, had been discriminated against by the church on grounds of his sexual orientation.

Mr Reaney brought his claim under the Employment Equality (Sexual Orientation) Regulations 2003, which make it unlawful to discriminate against employees or prospective employees (such as Mr Reaney) because they are gay.

In other words, treating a gay applicant less favourably than an applicant who is not gay.

Mr Reaney had applied for a job as a youth officer and was interviewed for the post by a panel of eight people in July 2006.

He was the best candidate but a unanimous decision to appoint him was blocked by the Bishop of Hereford after a meeting where he was asked about his previous gay relationship.

At the time of the interview, he was single.

It is reported that during the course of his evidence at the employment tribunal in April 2007, Bishop Priddis said he had made clear to Mr Reaney that a person in a committed sexual relationship outside of marriage, whether they were heterosexual, homosexual, bisexual or transgender, would be turned down for the post.

That is, he would treat non gay applicants equally (unfavourably).

The tribunal thought differently, and determined that Mr Reaney had been discriminated against in not appointed to the post.

Since the decision, there have been widespread calls for the Bishop’s resignation; and it remains to be seen what will happen.

The Bishop may yet appeal against the employment tribunal’s decision.

The tribunal also found that the post of diocesan youth officer falls within the small number of posts outside of the clergy which may be covered by the religious exemptions of the legislation.

These exemptions permit what might otherwise be unlawful discriminatory conduct by religious organisations in the following limited circumstances. For the exemptions to apply:

1. The employment must be for the purposes of an organised religion; and

2. The purpose of applying an occupational requirement related to sexual orientation must be either

a) to comply with the doctrines of the religion; or

b) 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).

This is one of the first cases to test the remit of the religious organisation exemption.

It is important to note that the exemption is for the purposes of a ‘religion’ not a ‘religious organisation.’

It was widely anticipated that it would therefore be unlikely to be interpreted to include any type of employment by a religious organisation, for example the employment of nursing staff by a religious hospice, or temple cleaners, since the primary purposes of employing nursing staff is to deliver health care, and cleaners to clean, rather than to espouse religious beliefs.

The occupational requirement can be ‘related to homosexuality’ rather than ‘being of a particular sexual orientation’ and therefore has wider implications, since there are concerns that it may potentially permit discrimination against an applicant for a post who has a more liberal attitude to gays and lesbians.

This has yet to be tested.

Compensation, to be assessed by the employment tribunal in the event that any appeal is unsuccessful, will be based on Mr Reaney’s loss of opportunity to be earning the wages, pension and benefits he would have earned had he been recruited to the £25,000 post.

He will also be awarded a sum for injury to feelings caused as a result of the discrimination, leading to a substantial award.

Arpita Dutt is a partner specialising in Discrimination Law, in the award-winning team at Russell Jones Walker.