A guide for further education and higher education Managing the interface: sexual orientation and faith

Guidance July 2010 Managing the interface: sexual orientation and faith A guide for further education and higher education

Contents

Foreword 3 Acknowledgements 4 Introduction 6 1. What the law requires of the sector 8 2. Staff services 9 2.1 If religion or belief come into conflict with the needs of the job 9 2.2 Staff training and induction 10 2.3 Staff code of conduct 11 2.4 Staff support 12 3. Learner residences 13 4. Student services and students’ unions 14 4.1 Learner charter 14 4.2 Relations between learners 14 4.3 Chaplaincy 16 4.4 Learner support 17 5. Teaching learning and assessment 18 5.1 Academic freedom 18 6. Governance 19 7. The role of trade unions 20 8. Policy – ensuring parity of treatment for all groups 21 9. Bullying and harassment 22 References and other sources of information 23 Appendix 1 – further information: Legal background 26 Employers’ vicarious responsibility 28 Admission and treatment of learners 30 Achieving a balance in legal protection 30 Implementing the law: case law 31 The Forum for Sexual Orientation and Gender Identity in Post-School Education 34 Stonewall recommendations 35

2 Managing the interface: sexual orientation and faith A guide for further education and higher education

Foreword

I am delighted to present Managing the interface: sexual orientation and faith. This resource looks at the experiences of employers, staff and learners in managing the needs and relationships between people of different sexual orientations and religions or beliefs.

At Lifelong Learning UK our role is to support This research, supported by the Forum for lifelong learning employers, including those in Sexual Orientation and Gender Identity Equality further and higher education, to recruit, retain in Post-School Education, seeks to understand and develop suitably skilled and effective the relationship between sexual orientation and employees at all levels. We believe that equality religion or belief equality, and to identify good and diversity should be at the heart of everything practice in managing the relationship between we do. A diverse workforce drives creativity and the two. innovation; inspiring learners and staff to achieve We welcome your comments and warmly to their full potential. encourage you to provide feedback to us about Promoting and advancing sexual orientation and this resource at [email protected] . religion or belief equality is still in its infancy within the lifelong learning sector. There is a growing body of evidence demonstrating how learning providers are promoting inclusion and tackling competing issues related to these diverse groups. This resource acknowledges that managing diversity brings its own challenges, and Sue Dutton in order to provide safe and inclusive work and Chief Executive learning environments it is vital for us to ensure Lifelong Learning UK that the whole workforce is appropriately trained, has the flexibility to respond to changing needs and is recruiting the best people from a wide talent pool. It is our vision that the UK lifelong learning sector will be the best in the world, and we believe that with continued hard work and commitment we can achieve this.

3 Acknowledgements

“We were very happy to participate in the “Equality and diversity has been at the heart of preparation of this guidance and the accompanying the work of the Learning and Skills Council, and research. We believe that together these we are pleased to have supported the resources will enable further education managers development of this innovative project. We hope to deal more confidently with their responsibilities that it will help colleges and providers to promote to manage the entitlements of staff and learners cohesion between learners from all groups, and under the religion and belief and the sexual enable them to achieve even better outcomes.” orientation strands of equalities legislation.” Dan Simons, Policy Manager Dr John Wise, Chief Executive of the National – Equality and Diversity Council of Faiths and Beliefs in Further Education Learning and Skills Council

“We welcome the research and guidance “We welcome this report and the research, and developed by Lifelong Learning UK and believe that colleges strive towards being inclusive partners which offers a real opportunity for institutions where all staff and students are able to further education to integrate these issues work and study without fear of harassment or more systematically and meaningfully into its bullying and are valued as individuals. It is clear culture and practice.” from this research that this is a sensitive area Margaret Adjaye, Programme Director where there are particular challenges. The AoC is – Equalities and Diversity pleased to have been involved in this joint project, The Learning and Skills Improvement Service which we hope will enable colleges to meet these challenges in a positive and constructive manner.” Evan Williams, Director of Employment and Professional Services Association of Colleges

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“The Equality Challenge Unit supports higher “The University and College Union supports education to realise the potential of staff and LGBT members and promote good relations in students whatever their age, race, gender, Universities and Colleges. UCU welcomes this disability, sexual orientation, religion or belief. research and guidance as a way of enabling our We are therefore extremely pleased to reps and members to ensure that staff and welcome this guidance to help organisations students can work and study in our institutions manage the interface between sexual free from discrimination and harassment. As a orientation and religion or belief. The research national Union we continue to work towards a shows that at times this can be a difficult area, real experience of equality and diversity and but also that there are extremely positive welcome the findings and recommendations as a messages that can be used to tackle prejudices contribution to the knowledge and understanding and preconceptions in these areas.” that can further guide our work.” Chris Hall, Senior Policy Adviser Laura Miles Equality Challenge Unit NEC LGBT FE rep and Chair of the LGBT members’ standing committee “The Forum’s guiding hope from initial idea to University and College Union delivery has been that in the hands of practitioners, at every level, this research and Lifelong Learning UK would like to thank the guidance may support and develop good relations Sexual Orientation and Faith Advisory Board for and promote understanding in our Universities their input to this guidance. The board was made and Colleges. Using this valuable resource up of members from the following organisations: previous difficulties may be overcome and Association of Colleges (AoC) advances made within and between these two Association of Teachers and Lecturers (ATL) equality areas. We welcome its production and commend it as a tool to progress equality work Equality Challenge Unit (ECU) and develop active approaches throughout post Learning and Skills Council (LSC) school education.” Learning and Skills Improvement Service (LSIS) Seth Atkin National Council of Faiths and Beliefs in Further Chair Education (FBFE) The Forum for Sexual Orientation and Gender Identity Equality in Post School Education National Union of Students (NUS) University and College Union (UCU)

5 Managing the interface: sexual orientation and faith A guide for further education and higher education

Introduction

This guidance was produced from the research It is designed to support users in ensuring that study Managing the interface: sexual orientation and sexual orientation equality and equality on the faith commissioned by Lifelong Learning UK, and grounds of religion or belief are managed and supported by the Forum for Sexual Orientation promoted on equal terms, without undue and Gender Identity Equality in Post-School tension arising between them. It will be helpful Education (The Forum) and The National Council in managing and dealing with tensions or for Faiths and Beliefs in Further Education (FBFE). conflicts between these two equality groups The research study explored the management should they arise. of the interface between sexual orientation The guidance will also help users to: equality and equality on the grounds of religion • meet the requirements of equality legislation or belief in the further and higher education sectors in England. • embed a culture and ethos of inclusion and respect for difference in their organisations It found that where equality and diversity was deeply embedded in the culture and ethos of • develop an approach to equality and diversity learning providers, relations between these two that promotes good relations between sexual equality groups tended to be mutually respectful. orientation equality and equality on the In other circumstances there was the potential grounds of religion or belief for significant tension and difficulty. Informed, • meet the needs of its learners and staff with consistent action by the learning provider to different sexual orientations and different develop mutually respectful relationships was religions or beliefs vital. The research found examples of good • develop and implement a single equality practice across the sector and a widespread scheme or comparable methods of embedding demand for practical guidance in developing equality into mainstream business planning. practice still further. The production of this guidance is timely in This guidance is for all those working in the view of the new Equality Act 2010 and further and higher education sectors (including recognises the need for a joined up approach further education colleges, higher education which encourages being proactive rather than institutions, work based learning and adult and one driven solely by legislation. community learning) who have a responsibility for or interest in the effective management and Findings from the research also reinforced the support of staff and learners and/or equality and importance of adopting an anticipatory approach diversity. when considering the management of issues relating to the inter-relationship between these two equality groups rather than simply responding to incidents as they arise.

6 The guidance provides an overview of the legal requirements for the sector, and is then structured around six functional areas of further and higher education. Where key issues arose across all areas these are presented separately as follows: • staff services • learner residences • student services and students’ unions • teaching, learning and assessment • governance • the role of trade unions • policy – ensuring parity for all groups • bullying and harassment. The final section of the guidance includes references and sources of information including helpful publications, guidance materials and websites. The appendix provides additional information on the legislation. The structure of the guidance is designed to enable users to turn directly to sections that may address their immediate professional concerns. Whilst this is a practical way of using the guidance, it will also be helpful to consider the guidance as a whole document since none of the functional areas operate in isolation. A ‘joined-up’ approach is likely to yield maximum results. Whilst this guidance offers possible approaches and strategies it should be noted that the list is not exhaustive. This guidance is presented without prejudice. While it examines the implications of legal cases it does not constitute legal advice.

7 Managing the interface: sexual orientation and faith A guide for further education and higher education

1. What the law requires of the sector

The Equality Act 2010 Public sector equality duty The main aim of the Equality Act 2010 is to A key development in the Equality Act 2010 is the simplify and clarify the law by replacing existing public sector equality duty placed on public equality legislation and related regulations to authorities (part 11, s.149). The duty requires achieve a consistency of approach to all of the public authorities to take a proactive approach to equality strands now known as ‘protected equality across all of the protected characteristics. characteristics’. The main provisions of the Act The duty will require a public authority to: will come into force in autumn 2010. As well as dealing with workplace discrimination, the Act • eliminate discrimination, harassment covers the provision of goods and services, and victimisation managing premises, education, and the functions • advance equality of opportunity for all of public bodies. • foster good relations between those who share Rather than being made up of separate parts protected characteristics and those who do not. dedicated to individual equality strands, the act An organisation that is not a public authority but sets out nine protected characteristics: exercises public functions – such as a work based • age learning provider – would need to ensure that • disability due regard is given to the above points and address the protected characteristics. • gender reassignment The act clarifies that this duty is designed to • marriage and civil partnership ensure that: • pregnancy and maternity • disadvantage suffered by those who share a • race protected characteristic, which is connected • religion or belief to that characteristic, is removed • sex • the specific needs of those who share a protected characteristic are met • sexual orientation. • people who share a protected characteristic The Equality Act 2010 does not include who are underrepresented in public life are new grounds of discrimination, as gender encouraged to participate reassignment, marriage and civil partnership, pregnancy and maternity are also covered by • prejudice is tackled and understanding the Sex Discrimination Act 1975. The purpose promoted. of the Equality Act 2010 is to rationalise and This new duty will have significant implications strengthen the existing legislation. for public authorities in identifying, understanding A summary of legal requirements prior to the and managing the relationships and interfaces Equality Act 2010 is set out in appendix 1, which between sexual orientation equality and equality also includes information on employers’ vicarious on the grounds of religion or belief. responsibility, the admission and treatment of learners, achieving a balance between the two equality groups, and details of relevant case law.

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While this guidance does not constitute legal advice, and providers may sometimes need to take such advice to help them resolve particular issues, what follows are some key considerations that providers may wish to take into account.

2. Staff services

2.1 If religion or belief comes into conflict Lessons learned with the needs of the job • Employers should take care to consider an A situation may arise where a member of staff employee’s request related to their religion or objects to teaching about aspects of sexual beliefs. However requests must be balanced orientation or religion or belief because they claim with legitimate business needs and, in it goes against their own beliefs. Or they might, particular, the right not to be discriminated for example, object to distributing marketing against on the grounds of religion or belief material at a lesbian, gay or bisexual event for should not translate into the right to manifest similar reasons. To date there is no record of such religion or belief in a way that discriminates cases occurring in the post-16 sector, but it may against others. be prudent to consider how such a situation could • Employers should distinguish between the be resolved were it to arise. basis of an employee’s objections to carrying In the case of Islington v Ladele 1, a Christian local out a particular job-related duty – in other authority registrar avoided carrying out civil words their religion or belief – and the partnership ceremonies because she claimed it employer’s reason for addressing this was against her religious beliefs to do so. The behaviour, which may in some circumstances Employment Tribunal Appeal ruled that because constitute misconduct. Employers should be all registrars had been required to carry out civil guided by their judgment of what constitutes partnerships Ms Ladele had not been unlawfully a legitimate business need. discriminated against. It ruled that this • Where the provider has a legal duty not to requirement was justified as a reasonable means discriminate against service users, and an of achieving the legitimate aim of promoting equality and diversity policy which commits equal opportunities and tackling discrimination. it to promoting all strands of equality (for It also found that the local authority was entitled example a single equality scheme), it is entitled and obliged to insist that Ms Ladele performed to require its staff to participate in the non- those duties. discriminatory provision of services. In the case of Mitchell v. Strathclyde Fire and Rescue 2, however, a Christian firefighter was What providers can do to prevent and respond disciplined for refusing to distribute fire service to tension leaflets at a gay pride march, claiming it was against • Develop clear and inclusive equality and his religious principles to do so. In an out of court diversity policies that cover all equality settlement the fire service apologised to Mr strands, including sexual orientation and Mitchell and withdrew its disciplinary sanctions. religion or belief, giving equal status and weight to each of the strands. In the case of Islington v Ladele the local authority was able to justify its requirement. In Mitchell v • Give careful consideration to this and other Strathclyde Fire and Rescue this may have proved similar guidance (information about other more difficult. resources can be found at the end of this document).

1See appendix 1 for further information. 9 2See appendix 1 for further information. Managing the interface: sexual orientation and faith A guide for further education and higher education

• Deliver staff induction that includes clear • Explain that refusal to teach an essential part of and appropriate treatment of equality and the curriculum in further education constitutes diversity policy and its implications for a failure to deliver what the employer requires teaching and learning. and is potentially a matter that could lead to • Recognise that personal and private opinions disciplinary action being considered. and beliefs will be respected while public • Ensure the member of staff is fully aware adherence to corporate equality and diversity of the requirements of the equality and policy will be required. diversity policy. • Create an ethos in which different views, • If discussion and encouragement fail to resolve opinions, religions and beliefs are respected the matter be ready to institute appropriate and openly discussed and debated. disciplinary action and/or seek outside • Ensure applicants and employees comply with mediation. Involve trade unions. the equality and diversity ethos and policies of the institution. 2.2 Staff training and induction The research found an absence of training related • Check their compliance against legal obligations. to managing the interface between sexual • Explain to colleagues who may experience orientation equality and equality based on religion a conflict between their personal views and or belief. It identified a need for such training to their professional role that they are expected support staff working in a wide range of roles. to represent the provider rather than The role of human resources is key to ensuring themselves, and that teaching about aspects that adequate and appropriate training is available of sexual orientation or about religion or to all staff, and that staff attend training that is belief will not be taken to indicate personal provided. Below are recommendations that agreement with or endorsement of what is came from the research. being taught or explored. • All staff should receive training in how to • Work with trade unions and students’ unions implement the provider’s equality and to establish a shared approach. diversity policies and/or schemes. • Be sensitive to the religions and beliefs of staff • All staff should be trained to understand the and if requiring them to undertake activity that provider’s disciplinary policy and its application may be in conflict with their religion or beliefs to breaches of the equality and diversity ensure that there is a robust justification for policies and/or schemes. doing so, linked to the core purpose and • Academic staff would benefit specifically from business of the organisation. training designed to enable them to deal Should a staff member object to/refuse to teach effectively with learners who may refuse to aspects of a course or undertake other related engage with ideas relating to sexual activities because of their personal views orientation and/or religion or belief. • Explain that further education staff should follow the prescribed curriculum.

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• Residential wardens would benefit from The staff code of conduct can: training that illuminates the potential difficulties • be developed and reviewed in ways that that may arise between sexual orientation and incorporate the views of staff with different religion or belief equality and which provides sexual orientations and with different religions mediation and dispute resolution skills, as well or beliefs – particular attention should be paid as training in implementing disciplinary policy. to gaining the views of lesbian, gay and • Student services staff would benefit from bisexual staff who hold a religion or belief training to enable them to consider how to • require all staff to abide by the provider’s actively promote good relations between equality and diversity policy or single equality learners with different sexual orientations and scheme, with special emphasis being given to religions or beliefs. the prohibition of bullying and harassment on • Chaplaincy staff would benefit from training all grounds that familiarises them with the needs of • draw attention to the fact that all equality lesbian, gay and bisexual learners, and that groups are of equal importance supports them to develop strategies for engaging with religiously motivated • recognise as a fundamental premise that a homophobia and homophobia more generally. place of learning is one in which different views coexist and can be contested within a • Staff induction should ensure that all staff are culture of respect for difference, and that all familiar with the provider’s equality and views and opinions can legitimately be diversity policies and/or schemes and include challenged and interrogated an appropriate treatment of sexual orientation. • draw attention to the potential conflicts 2.3 Staff code of conduct between different equality groups and set out the corporate commitment to managing those The research identified the importance of conflicts within a policy-led context of mutual anticipatory planning and corporate respect and open, democratic debate intervention to resolve tensions or conflicts between sexual orientation equality and equality • guarantee support for and recognition of the on the grounds of religion or belief. It found that needs of staff with different sexual orientations an embedded culture and ethos of inclusion and and religions or beliefs. respect for difference made a positive impact on relations between the two equality groups. The staff code of conduct, like the learner charter, can be a powerful instrument for establishing the required principles and standards of staff behaviour if used appropriately. In doing so it should reflect clear statements in the provider’s mission and vision statements. Trade unions can play a key role in negotiations over developing a staff code of conduct.

11 2.4 Staff support Human resources departments can: The research highlighted the practice of • consider enabling the development of providers supporting the development and work staff equality networks based on equality of staff equality networks, which allows staff to strands including religion or belief and meet in groups or networks organised on the sexual orientation basis of a single equality strand. This included staff • give careful consideration to specialist networks for those with a religion or belief and guidance on establishing staff networks for those who were lesbian, gay or bisexual. (information about useful resources can be The effective management of the interface found on page 23 of this document) between sexual orientation equality and equality • include a commitment to respecting the on the grounds of religion or belief was shown to members and purposes of all the networks be facilitated by the joint, cooperative work of and to developing joint activities between the these different staff networks. Examples of such networks where appropriate in the terms of joint work included shared participation in reference of the networks significant events such as a memorial service for the Holocaust Memorial Day, and joint • involve trade unions where appropriate to participation in staff induction and training. facilitate membership of networks. In many cases such activity brought individuals together from different networks who would not otherwise have met, in some cases because of preconceived, negative stereotyping; enabling mutually respectful relationships to develop.

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3. Learner residences

The research found that university halls of • Hold induction discussions with learners led residence were sometimes a site of tension and by the warden or other representative of conflict between learners who were lesbian, gay the providers to set out the provider’s or bisexual and learners with different religions or expectations about behaviour, bullying and beliefs. Tensions occurred in residences in which equality and diversity, including the there was no selection on the basis of equality unacceptability of religiously motivated strands and also in residences that were homophobia. organised on the basis of religion, where lesbian, • Provide learners with an easy-to-use gay and bisexual coreligionists were harassed complaints procedure. because of their sexual orientation. In most cases of this kind no official complaints about harassing • Consult other related guidance in this area behaviour were made by learners to the (information about useful resources can be authorities responsible for the residences. As a found on page 23 of this document). result, no intervention was forthcoming and the • Involve students’ unions in the process so that affected learners left the residences and sought they can respond and support learners. other accommodation elsewhere. • Ensure all incidences are dealt with consistently, What are the issues? irrespective of whether they relate to sexual • Bullying and harassment – possible breach orientation or religion or belief. of policy. • Ensure they do not accept religion or belief • Learner safety – physical and psychological. as justification for bullying or harassment. • Learner retention – if unresolved the affected • Investigate officially all complaints about learner may leave. bullying or harassment and take evidence from both sides. • Learner success – academic progress may be affected. • Work with students’ unions so that they are aware of any difficulties and can also provide • Legal liability – the provider may be open a supportive role for learners. to litigation. • Implement consistent disciplinary procedures What providers can do to prevent and respond – those proven to have bullied or harassed to tension should routinely be disciplined, and, as a last • Include a commitment to abide by the resort, removed from the residence. provider’s behaviour, anti-bullying and equality • Bring the full authority of corporate policy and diversity policies in residency agreements. and procedure to bear on any complaint • Prominently display anti-bullying and equality about bullying, harassment or other types and diversity policies in halls of residence. of discrimination. • Train residence wardens and security staff to respond to tensions between learners on the grounds of sexual orientation and religion or belief.

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4. Student services and students’ unions

The research identified the importance of • draw attention to the potential conflicts adopting an anticipatory approach to resolve between different equality groups, and set out tensions or conflicts between sexual orientation the corporate commitment to managing those equality and equality on the grounds of religion or conflicts within a policy led context of mutual belief. It found that an embedded culture and respect and open, democratic debate ethos of inclusion and respect for difference • guarantee support for, and recognition of, made a positive impact on the relationship the needs of learners with different sexual between the two groups. orientations and religions or beliefs.

4.1 Learner charter 4.2 Relations between learners The learner charter or its equivalent, if used The research identifies some specific challenges appropriately, can be a powerful instrument for regarding relations between learners, including: establishing the required principles and standards of learner behaviour in relation to these two • interpersonal conflict often including bullying equality groups. In doing so, it should reflect and harassment in university halls of residence clear statements in the provider’s mission and and within religious societies or groups vision statements. • conflict between individuals and groups – for The learner charter can: example traditional religious groups harassing lesbian, gay or bisexual students • be developed and reviewed in ways that include the views of learners with different • conflict between groups or societies, where sexual orientations and with different religions candidates for elected office who may be or beliefs – particular attention should be paid lesbian, gay or bisexual are not supported by to gaining the views of lesbian, gay and societies of different faiths or beliefs because bisexual learners who hold a religion or belief of their sexual orientation. • emphasise that all equality groups are of The research showed too the importance of equal importance intervention or mediation by the provider’s authorities designed to resolve tensions or • require all learners to abide by the provider’s conflicts. Such intervention is important in equality and diversity policy and/or single contributing to mutually respectful relations. The equality scheme, with special emphasis being research also highlighted the value of students’ given to the prohibition of bullying and union activity in breaking down barriers between harassment on all grounds these two equality groups. • recognise as a fundamental premise that a place of learning is one in which different Policies and rules views coexist and contest within a culture • Provider equality and diversity policies and of respect for difference, and that all views schemes should address all groups covered and opinions can legitimately be challenged by protected characteristics on equal terms and interrogated (Learning and Skills Council (LSC)/Learning and Skills Improvement Service (LSIS) 2009).

14 Managing the interface: sexual orientation and faith A guide for further education and higher education

• Provider equality policies and schemes should union should include a requirement to refrain outline how bullying and harassment on the from any bullying or harassing behaviour, and grounds of all the equality groups is prohibited. a requirement that behaviour between the • Bullying and harassment should constitute a societies remains respectful and within the serious breach of discipline for which exclusion organisation’s rules and policies at all times. from the organisation is a final sanction. Promoting good relations • Equality policies and schemes should take The research highlighted some successful account of the potential for conflict between approaches to dialogue and bridge-building, different equality groups and make explicit which can resolve divisions. These approaches provision for mutual respect. concentrate on sharing and exploring experiences • Providers should ensure – in line with their rather than focussing on what may seem to be equality policies and schemes – that learner mutually excluding principles. codes of conduct, charters and, where • Student unions can convene discussions relevant, tenancy agreements between between the officers of lesbian, gay and learners and college controlled residences bisexual societies and religious societies to all include clauses prohibiting bullying and support them in leading their groups in ways harassment on the grounds of all the equality that support mutually respectful and positive groups which should be named. relations and that focus on shared experiences • Equality impact assessments should assess of being a learner. the potential for conflict or tension between • Where societies receive union or other funding different equality groups and set out a condition of funding could include standards mitigating actions. of behaviour linked to the relationship between • Learner induction materials and activities sexual orientation and religion or belief. should deal explicitly with the unacceptability • Learner societies can organise meetings, of bullying and harassment – they could include discussions or debates which allow their illustrative examples of unacceptable behaviour, different perspectives to be explored and including examples of tension or bullying which facilitate participants sharing their between lesbian, gay and bisexual learners experiences. and those with different religions or beliefs. • Public events should be well planned, with • Relevant staff should be made aware of the members of societies briefed about acceptable potential for conflict or tension between standards of behaviour before the events are lesbian, gay and bisexual learners and those held, and relevant staff briefed. with different religions or beliefs and be • Student services departments can convene trained to manage, defuse and deal with similar discussions and debates and have such situations equitably and fairly. these issues and approaches reflected in • The terms on which religious learner tutorial programmes. societies and lesbian, gay and bisexual learner • Chaplaincies can actively counter and engage societies are sanctioned and funded by either with religiously motivated homophobia and the college or university or by the students’ homophobia more generally.

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Providing support to lesbian, gay and bisexual 4.3 Chaplaincy learners who have a religion or belief The research identified college and university The research illustrated that there are significant chaplaincies and other forums that bring numbers of learners who are lesbian, gay or different religions or beliefs together as being bisexual and have a religion or belief. Learners in able to play a powerful role in promoting this position may feel they have to focus on one equality and diversity, and in challenging of these aspects of their identity at the expense religiously motivated homophobia. They also of the other, often giving rise to painful choices help to meet the needs of many learners and and internal conflict. staff with a religion or belief who feel Colleges, universities and students’ unions marginalised by what they experience as the can consider: secular ethos of many learning providers. • encouraging funded religious learner societies to Chaplaincies and other official religious forums facilitate the full participation in their activities of often hold events that are not specifically centred lesbian, gay and bisexual coreligionists on religious observance but which celebrate or commemorate events such as the Holocaust • encouraging funded lesbian, gay and bisexual Memorial Day, and which are organised to societies to facilitate the full participation of include lesbian, gay and bisexual groups and peers who have a religion or belief individuals as well as those from all the other • ensuring that chaplaincies are organised to be equality groups. Such events have a positive open, inclusive and with a specified role to impact on the relationship between sexual cater for the religious and spiritual needs of orientation equality and equality on the grounds all members of the learning community of religion or belief. • ensuring that chaplaincies are organised, The research found that university chaplains are trained and equipped to challenge religiously likely to have an ‘arms-length’ relationship to the motivated homophobia university. Nevertheless, their work within the corporate equality policy or scheme, their • ensuring that equality policies and schemes capacity to support lesbian, gay and bisexual make specific provision for learners who are learners and their capacity to challenge lesbian, gay or bisexual and have a religion dogmatism will remain important features. or belief.

16 Establishing a centre to bring different religions As in the area of staff support, the effective and other equality groups together management of the relations between sexual The research found that one university in the orientation and religion or belief was facilitated by North West had established an interfaith centre. the joint, cooperative working by these different The impetus for the centre’s establishment was learner networks. Such activity brought the emerging single equality scheme for the individuals together from different networks who university which set out to meet the needs of might not otherwise have met, in some cases those with different religions or beliefs and to because of preconceived, negative stereotyping, support their interface with the other equality enabling mutually respectful relations to develop. groups. The vision statement for the centre, Student services departments and students’ which provides an exemplary model of an open, unions could: moderate, inclusive provider-based centre for religion or belief, is anchored in the provider’s • consider enabling the development of learner single equality scheme. equality networks • ensure this includes networks based on 4.4 Learner support religion or belief and on sexual orientation The research identified the benefits of provider • ensure networks include in their terms of support for the development and work of reference a commitment to respecting the learner equality networks, including learner members and purposes of all networks, and to networks for those with a religion or belief and developing joint activities where appropriate. for those who were lesbian, gay or bisexual. Such networks were often organised with the support of the students’ union and/or the student services department.

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5. Teaching learning and assessment

5.1 Academic freedom • Some staff may benefit from being trained in The research identified instances of academic facilitation and mediation skills to support disruption, by religiously dogmatic learners of them to manage disruption of this kind. different faiths. Typically, a lecture or seminar • Robust debate between religious and non- exploring aspects of family structure or human religious perspectives and between sexuality might be interrupted by groups of perspectives within religious traditions should learners trying to prevent discussion going be welcomed and used to enrich academic forward on the basis of their dogmatic views. discourse. Dogmatic religious adherents will While the overwhelming majority of religious need to accept that their view has no right to learners are never involved in such activity, small dominate or to escape challenge. Lesbian, gay numbers in both universities and further and bisexual learners will similarly need to education colleges are, and can impact negatively accept that within rules requiring respect, on the quality of teaching and learning. their own assumptions and opinions can also The research found that lecturers and tutors be challenged. Such exchange, and the active often felt unprepared and lacked confidence to management of difference, are central to the respond to such disruption and sometimes core purpose of a college or university. allowed it to close down discussion and debate. • College and university chaplaincies can be powerful advocates against religious dogmatism What providers can do and can become involved in developing • No learner should be allowed to disrupt or responses to dogmatic views, opinions and prevent free academic debate in any university actions from within religious discourse. or college setting – this should be stated clearly • If academic disruption originates from in relevant publications such as learner charters college, university or students’ union funded and handbooks. groups and it cannot be stopped, funding • Religious belief is not an acceptable reason authorities should consider withdrawing for actions that disrupt teaching and learning. funding. This option should be set out clearly There should be no prohibition on any religious in the terms and conditions under which views, but disruptive action arising from funding is made available. religious beliefs can and should be prohibited. The research found no examples of the disruption • Academic disruption of this sort should be of teaching and learning by lesbian, gay or bisexual treated as a serious disciplinary offence and groups objecting to the teaching of religious could, in the last instance, lead to exclusion perspectives. However the same approach from the organisation. would apply should this occur. • Academic staff should be briefed on this and trained in how to manage any such attempted disruption.

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6. Governance

The research identified that governing bodies and • interrogate and ‘equality proof’ board or boards of learning providers need to play a key governing body business role in providing a strategic lead, on equality and • regularly seek evidence from senior diversity generally and on managing the interface managers to ensure that the organisation is between sexual orientation equality and equality compliant with equality legislation, including on the grounds of religion or belief. the duty to promote good relations between Governing bodies and boards need to consider different groups ways to: • regularly seek evidence that the interface • promote and communicate their strategic between sexual orientation equality and leadership role regarding equality and diversity equality on the grounds of religion or belief is • maximise a strategic leadership role in the being managed well, with due consideration equality and diversity policy and practice of being given to both strands and to the their organisation relationship between the two • ensure the strategic leadership role is • require management action on any aspect reflected in the organisation’s equality and of legal compliance and compliance with the diversity policy, single equality scheme or organisation’s equality and diversity policy similar, to embed equality into business • receive a regular report from senior managers planning on the progress of, and challenges facing, • identify a member or members to take lead equality and diversity, including the effective responsibility for equality and diversity on the management of the interface between sexual governing body orientation equality and equality on the grounds of religion or belief • ensure their own membership will model equality and diversity and include people with • Work with trade unions to promote and different sexual orientations and different encourage positive relations between different religions or beliefs equality groups. • meet their equality and diversity training needs and undertake appropriate training

19 Managing the interface: sexual orientation and faith A guide for further education and higher education

7. The role of trade unions

The research showed that there can sometimes • encourage members with different sexual be a mismatch between national trade union orientations and different religions or beliefs policies and branch level practice relating to to undertake leadership roles at all levels of equality and diversity and the management of the the union interface between sexual orientation equality and • provide guidance and support to local equality on the grounds of religion or belief. branches to enable them to play an active Sector trade unions should consider how they role in achieving the effective management can work to: of the interface between sexual orientation • promote understanding of, and action equality and equality on the grounds of on, national equality policies at local and religion or belief branch level • incorporate issues relating to the effective • develop and deliver appropriate and high management of the interface between quality training to branch officials – designed sexual orientation equality and equality to enable them to play an active and positive on the grounds of religion or belief into role in ensuring the effective management collective bargaining. of the interface between sexual orientation equality and equality on the grounds of religion or belief • encourage staff members with different sexual orientations and different religions or beliefs to join them and take an active role in their work

20 8. Policy – ensuring parity of treatment for all groups

The research found examples of providers taking Providers can: the perceived needs of one equality group over • ensure that their equality and diversity polices another; for example how learners with different and single equality schemes give equal weight religions or beliefs might react negatively to the to each of the protected characteristics promotion of equality on the basis of sexual (LSC/LSIS 2009) orientation by a provider. • reflect parity of treatment in action and The law is clear that such ranking of equality implementation plans groups is unwarranted and should be avoided. The aim of a single equality scheme or similar • avoid practice which prioritises one group over method to embed equality objectives and another unless there is a legally acceptable, equalities legislation is to deliver a coordinated tested, justifiable and transparent justification approach to equality, with a balanced and equal for doing so approach to all of the different equality groups. • treat cautiously assumptions about how A further example from the research was the individuals or groups from one equality perception that some overseas learners with a group might react to the promotion of religion or belief may have difficulty accepting equality for individuals and groups from that attitudes and laws relating to homosexuality others – they are likely to be based on in the UK are different to those in their home unfounded stereotypical assumptions and countries. Assumptions that these learners lead to unsatisfactory outcomes. would be discouraged from attending learning environments that promote sexual orientation equality are without foundation and should not be acted on. 21 9. Bullying and harassment

The research found widespread bullying and harassment of learners at the interface of sexual orientation equality and equality on the grounds of religion or belief. Most of it was directed towards lesbian, gay and bisexual learners from a small minority of learners with dogmatic religious views. Providers should ensure that: • anti harassment and bullying policies identify homophobic harassment and bullying resulting from religiously motivated homophobia as within scope and as unacceptable • religious belief is not acceptable justification for any type of harassment or bullying • sexual orientation is not an acceptable justification for any type of bullying or harassment directed against people with a religion or belief • instances of bullying and harassment are systematically recorded along with the grounds on which it took place • reporting procedures are user friendly, simple, credible and reliable • lesbian, gay and bisexual individuals and individuals with different religions or beliefs are made aware that the provider encourages them to report bullying or harassment and is committed to providing redress in proven cases.

22 Managing the interface: sexual orientation and faith A guide for further education and higher education

References and other sources of information

Advisory, Conciliation and Arbitration Service (ACAS) (2009) Management handling of sexual orientation, religion and belief in the workplace , London: ACAS Advisory, Conciliation and Arbitration Service (ACAS) (2003), Guidance for employers , London: ACAS Association of Colleges (AoC) and staff unions (ACM, ATL, GMB, T & G, Unison and UCU) Joint agreement on guidance for religion and belief equality in employment in FE colleges http://www.ucu.org.uk/media/docs/1/4/fejointag_relig_08.doc Association of Colleges (AoC) and staff unions (ACM, ATL, GMB, Unite, Unison and UCU). Joint agreement on guidance for sexual orientation equality in employment in FE colleges http://www.atl.org.uk/Images/Agreement%20on%20sexual%20orientation%20equality%20in%20FE.pdf Centre for Excellence in Leadership (2006) Equality and sexual orientation – The leadership challenge for further education , London: Centre for Excellence in Leadership Department for Communities and local Government (2007a) Guidance on new measures to outlaw discrimination on grounds of religion or belief in the provision of goods, facilities and services , Part 2, Equality Act 2006, Wetherby, West Yorks: Communities and Local Government Publications Department for Communities and Local Government (2007b) Guidance on New Measures to Outlaw Discrimination on Grounds of Sexual Orientation in the Provision of Goods, Facilities and Services , Equality Act (Sexual Orientation) Regulations 2007, Wetherby, West Yorks: Communities and Local Government Publications Diamond, P (2008) Religion or belief: the right to be wrong, Equal Opportunities Review , April 2008 Ellison, G. and Gunstone, B. (2009) Sexual orientation explored: A study of identity, attraction, behaviour and attitudes in 2009 , London: YouGov Equality Challenge Unit (ECU) (2008) Handbook for student accommodation providers: support for equality and diversity , London: Equality Challenge Unit Equality Challenge Unit (ECU) (2009) The Experience of lesbian, gay, bisexual and trans staff and students in Higher Education , London: Equality Challenge Unit Faiths and Further Education (2008) Welcome to Chaplaincy – A Training Programme for Multi-Faith Chaplaincy in the Further Education Sector , London: National Council of Faiths and Beliefs in Further Education (fbfe) / Learning and Skills Council (LSC) Goodwin, K. (2009) Religion at Work – an EOR Survey, Equal Opportunities Review , 24 April 2009 HM Stationery (2006) The Equality Act , London: The Stationery Office HM Stationery (2009) The Equality Bill , London: The Stationery Office House of Commons Research Paper 03/54 (2003) Employment Equality Regulations: Religion and Sexual Orientation , 9 June 2003 Hunt, R., Stonewall Workplace Guides (2009) Religion and sexual orientation – how to manage relations in the workplace , London: Stonewall

23 Managing the interface: sexual orientation and faith A guide for further education and higher education

Javaid, M. (2009) Ruling on homophobic banter opens up a ‘Pandora’s attic’, People Management Magazine , 29 January 2009. Lambeth UNISON News (2009) LGBT Report, Unison , 6 January 2009. Learning and Skills Council and Learning and Skills Improvement Agency (2009) Equality and Diversity in Self-assessment: guidance for colleges and providers , Coventry LSC Lesbian and Gay Christian Movement (2009) Briefing by the Lesbian and Gay Christian Movement on The Equality Bill : LGCM Maleiha, M. (2009) From conflict to cohesion: competing interests in equality law and policy, Equal Opportunities Review , April 2009 Newman, D. (2009) The Equality Bill: Part One , unpublished paper. McLellan, J. (2008) How inclusive is the university for staff and students with different sexual orientation? Oxford: Oxford University Peacock, L. (2009) EAT rejects religious discrimination claim of Christian counsellor . London: Personnel today Potbury, T. (2009) Dangers of homophobic banter: Construction News . 2 March 2009 Rubenstein, M. (2009) The Equal Opportunities Review guide to the Equality Bill: part 1 – general principles , Issue No: 189, June 2009 Stonewall (2005) Network groups: setting up networks for lesbian, gay and bisexual employees. http://www.stonewall.org.uk/workplace/1473.asp#network_groups Stonewall (2007) Sexual Orientation Research Review – a consultation, The Equalities Review The Equality Act (Sexual Orientation) Regulations 2007 , Department for Communities and Local Government: London. Trades Union Congress (2009) Sexual orientation and religion or belief cases University and College Union (UCU) (2007) Sexual orientation and religion or belief cases – latest, UCU Equality Extra , No. 7, October 2007 Wragge & Co LLP (2009). Employment Law 2009 review/ 2010 preview: Part 1 Legal update. Available at: http://www.wragge.com Wragge & Co LLP. (2009) Law Briefing . Available at: http://www.wragge.com Wragge & Co LLP. (2009) Employment Law 2009 review/2010 preview: Part 1, Legal update . Available at: www.xperthr.co.uk/blogs/employment-intelligence

24 Managing the interface: sexual orientation and faith A guide for further education and higher education

Useful websites: Advisory, Conciliation and Arbitration Service (ACAS) – http://www.acas.org.uk Equality and Human Rights Commission – http://www.equalityhumanrights.com Equality Challenge Unit – http://www.ecu.ac.uk Forum for Sexual Orientation and Gender Identity in Post-School Education – http://www.lluk.org/3487.htm Further Education Browse (FE Browse) – http://www.febrowse.org Government Equalities Office – http://www.equalities.gov.uk Imaan (LGBT Muslim support group) – http://www.imaan.org.uk Learning Skills Improvement Service (LSIS) The Excellence Gateway – http://www.excellencegateway.org.uk/ Lesbian and Gay Christian Movement – http://www.lgcm.org.uk National Council for Faiths and Beliefs in Further Education (FBFE) – http://www.fbfe.org.uk/ National Union of Students – http://www.nus.org.uk Stonewall – http://www.stonewall.org.uk Trade Unions Congress – http://www.tuc.org.uk UNISON – http://www.unison.org.uk University and College Union – http://www.ucu.org.uk

25 Managing the interface: sexual orientation and faith A guide for further education and higher education

Appendix 1: Further information Legal background

Pre 2003 – European Convention of Directive requiring all member states to have this Human Rights protection in place. They extended equality Cases of religion or belief and sexual orientation law in Great Britain and made it unlawful for discrimination were heard in employment employers to discriminate because of a person’s tribunals and courts prior to the introduction of sexual orientation or religion or belief. both sets of regulations: Employment Equality The regulations, the Equality Act 2006 and (Sexual Orientation) Regulations 2003 and provisions in the Equality Bill 2009 apply to all Employment Equality (Religion or Belief) employment and vocational training and include Regulations 2003. recruitment, terms and conditions, promotions, The European Convention of Human Rights transfers, dismissals and training. They make covers freedom of religion and non-discrimination unlawful on the basis of sexual orientation or faith on grounds of sexual orientation. Article 9 allows or belief: individuals “freedom of thought, conscience and • direct discrimination – that is, treating people religion”. This includes freedom for an individual worse than they would treat other, because to change their religion or belief and freedom to of their sexual orientation or because they worship, teach, practice and comply with their follow/do not follow a particular religion or religion or belief. The convention limits this belief or because they believe them to have freedom to activity in the interests of public safety, these characteristics to protect public order, health or morals, or to • indirect discrimination – that is, applying a protect other people’s rights and freedoms. condition, restriction or practice which Article 9 therefore protects ‘freedom of religion’ disadvantages people on the grounds of sexual rather than offering protection against orientation or a particular religion or belief discrimination on grounds of religion or belief. unless the disadvantageous element can be Article 14 of the convention protects from objectively justified discrimination by stating that people should enjoy • harassment – unwanted conduct that abuses a the rights and freedoms set out in the convention person’s dignity or creates an intimidating, without discrimination on any ground including hostile, degrading, humiliating or offensive “other status”. Significantly, sexual orientation is environment for them (considering all the not mentioned with the other protected equality circumstances including the perception of the groups. Therefore, the European Court of victim) Human Rights interprets ‘other status’ to include sexual orientation. • victimisation – when a complaint has been made or is intended about discrimination Post 2003 – UK Regulations because of a person’s sexual orientation or The Employment Equality (Sexual Orientation) religion or belief Regulations came into force on 1 December Discriminate also continues to be unlawful after a 2003 and the Employment Equality (Religion or person leaves their place of work. Belief) Regulations on 2 December 2003. They were introduced as a result of a European Union

26 Managing the interface: sexual orientation and faith A guide for further education and higher education

The Sexual Orientation and Religion or Belief If something appears to have the characteristics of Regulations (2003) also made it unlawful to a religion, or of religious or philosophical belief, it is discriminate in employment and vocational likely to fall within the definitions. training, against learners and employees on the The notion of religion or belief in the Equality Act grounds of sexual orientation or perceived will be interpreted by the courts with reference sexual orientation. to relevant case law, including that relating to the The Equality Act 2006 extended this to provide European Convention on Human Rights. This will protection against discrimination in the provision mean that to be protected by equality law, a faith of goods and services. For a learning organisation or belief should attain a certain level of clarity, this means services such as learning, facilities and seriousness and cohesion that is compatible with accommodation for learners and service users. human dignity. Therefore, the idea of religion will The Civil Partnership Act 2004, taking effect in include, but not be limited to, those religions 2005, provides lesbian, gay and bisexual people widely recognised in Britain such as the Baha’i similar rights and responsibilities to those of faith, Buddhism, Christianity, Hinduism, Islam, married heterosexual people. Jainism, Judaism, Rastafarianism, Sikhism, and Zoroastrianism (Department for Communities Legal definitions of sexual orientation and and Local Government, 2007a). religion or belief The Equality Act 2006, part 2, states that The 2003 Regulations established the legal discrimination on the grounds of lack of religion definitions of sexual orientation and religion and or belief is also outlawed. It will therefore be belief. These definitions are carried into the unlawful to discriminate against someone because, Equality Act 2010. for example, they do not belong to a particular In the Equality Act 2006 part 2, section 35, sexual religion (or any religion at all), or they do not orientation is defined as “an individual’s sexual adhere to a particular belief, such as humanism. orientation towards persons of the same sex, Applying legal exceptions and exemptions – persons of the opposite sex, or both”. It includes potential for discrimination? heterosexual, homosexual and bisexual orientation. This definition does not include Organisations such as the Lesbian and Gay transsexuality. This relates to gender and is Christian Movement (LGCM) have raised covered in the employment context by sex concerns about some of the exceptions and discrimination law such as, for example, the Sex exemptions to the terms of the sexual Discrimination (Gender Reassignment) Regulations orientation Regulations, and the Equality Act 1999. However, clearly the transsexual population 2010 (LGCM, 2009). will include the full range of sexual orientations. They welcome the recognition that protection ‘Religion’ means any religion or belief which will cover people who belong to the same includes any religious or philosophical belief. All the religious group or denomination but do not share major religions are included within the definitions; all its beliefs as stated in the Equality Act 2010. as are less well-known religions or beliefs. The They also welcome the proposed public sector definitions of religion or belief are widely drawn. equality duty, one of the main pillars of the act; to

27 Managing the interface: sexual orientation and faith A guide for further education and higher education

act towards eliminating discrimination, harassment However, it is the general occupational and victimisation, advance equality of opportunity, requirement in the sexual orientation regulation tackle prejudice and promote understanding. which has attracted most attention. In this case, More specifically the support working towards discrimination is allowed if: achieving equality of opportunity and fostering • being of a particular sexual orientation is good relations between people who share a a genuine and determining occupational protected characteristic and people who do not requirement for the job; and share it (Equality Act 2010 s.149). • it is proportionate to apply that requirement The most contentious issue has been the extent in the particular case (House of Commons to which religious organisations in particular could research paper 03/54 2003). exercise choice (or discriminate) over their appointments. On the one hand the aim of the And, secondly if: legislation is to eliminate all discrimination, but on • the employment is for purposes of an the other there are clear cases when a person’s organised religion and the employer applies individual characteristics or attributes are either a requirement not to employ lesbian, gay or an essential part of the job or a barrier to gaining bisexual people – a job (House of Commons research paper 03/54, (i) in order to comply with the doctrines of 2003). For example religious organisations can the religion, or lawfully refuse to employ a person because the person is lesbian, gay or bisexual. (ii) because of the nature of the employment and the context in which it is carried out, The regulations provide a comprehensive law so as to avoid conflicting with the strongly banning discrimination in employment on the held religious convictions of a significant grounds of religion or belief and sexual orientation. number of the religion’s followers (Equality They cover all stages of the employment process, Act 2010). including recruitment, conditions of continuing service, pay, promotion and dismissal, subject to a ‘genuine occupational requirement exception’ Employers’ vicarious responsibility which allows discrimination where: Under the religion or belief and the sexual orientation requirements of part 2 of the Equality • being of a particular religion or belief is a Act 2006, employers are responsible for the genuine and determining occupational actions of their staff and those delivering a service requirement for the job; and on their behalf, whether or not they know about • it is proportionate to apply that requirement or approve of the act. For example, if a learning in the particular case where the employer has provider’s employee refuses to serve or to teach “an ethos based on religion or belief” (the a person because of their faith or belief or their occupational requirement need only be sexual orientation the organisation would be “genuine”, not necessarily “determining”), potentially liable as well as the individual (House of Commons research paper, 2003). concerned. This concept of vicarious liability has serious implications for employers.

28 Managing the interface: sexual orientation and faith A guide for further education and higher education

It is a defence however if the learning provider Part 3 of the Equality Act 2006 allows the can prove that it took reasonable steps to prevent government to introduce regulations outlawing the discrimination from taking place. Reasonable discrimination on the ground of sexual orientation steps may include training staff in the legal in the provision of goods and services. These requirements of part 2 of the Equality Act. Sector are contained in The Equality Act (Sexual organisations will therefore need to take steps to Orientation) Regulations 2007. They follow the ensure staff are aware that such discrimination is same framework as part 2 of the act which unlawful and what the implications are for them in deals with religion and belief. carrying out their work. Individuals who are The Equality Act (Sexual Orientation) Regulations concerned that the requirements of their job may 2007 outlaws discrimination in the provision of be incompatible with their religious beliefs may goods, facilities, services, education and public ask their employer to move them to work that functions on the grounds of sexual orientation, does not put them in the situation that requires therefore incorporating the provisions of the them to act against their faith. However, this can employment regulations of 2003 but widening only work successfully if there is mutual consent. the ambit of legal provision. Sector employers need to be sensitive to all As under part 2 of the Equality Act 2006 in of their employees’ protected characteristics, relation to religion and belief it is, subject to including religion or belief and sexual orientation, certain exceptions, unlawful for a person or and be mindful of their obligations under the organisation that provides goods, facilities or Employment Equality (Religion or Belief) and services to the public (or a section of the public (Sexual Orientation) Regulations 2003 and such as pensioners or mothers) to discriminate Equality Act 2006 not to discriminate against on the grounds of sexual orientation in any of the their staff because of their faith or belief or their ways defined by the Regulations of 2007 against a sexual orientation. person who seeks to obtain, or use those goods, The Equality Act 2006 facilities or services. This includes the provision of education, training and learner accommodation. The Equality Act 2006 made provision for the establishment of the Commission for Equality and What organisations might do Human Rights; to dissolve the Equal Opportunities Organisations might update their guidelines and Commission, the Commission for Racial Equality policies to include sexual orientation and faith or and the Disability Rights Commission; to make belief equality and distribute them to all staff. They provision about discrimination on the grounds of should make clear that all equality strands require religion or belief; to enable provision to be made equal respect and equal treatment. Disciplinary about discrimination on the grounds of sexual and grievance policies may need updating to orientation; to impose duties relating to sex ensure staff are aware of the behaviour that is discrimination on persons performing public expected of them, and to make employees who functions and to amend the Disability believe they have been discriminated against aware Discrimination Act 1995 (Equality Act, 2006: ch3). of the complaints procedure.

29 Managing the interface: sexual orientation and faith A guide for further education and higher education

Organisations should consider staff awareness The legislation does not apply to the content of training, particularly for managers, who may be the curriculum. This allows higher and further unaware that what they are doing indirectly education sector organisations to include a full breaches the legislation. range of topics, ideas and materials in their syllabus and to expose learners to different Admission and treatment of learners kinds of thoughts and ideas. However they The Equality Act 2006 applies to current learners need to ensure that the way the curriculum or a person who applies to be admitted as a is taught does not subject learners to learner: discrimination or harassment.

• in the process for deciding who is offered Achieving a balance in legal protection admission as a learner The religion or belief and sexual orientation • in the terms it offers to admit the person provisions of the Equality Act 2006 are intended as a learner to balance the right of individuals and groups to • by not admitting the person as a learner express their own religion or belief with the right of individuals to express their sexual orientation. • in the way it provides education for the The provisions are not intended to give one learner equality strand more importance than another. • in the way it allows the learner access to a The provisions are there to ensure that when benefit, facility or service, or prevents the people work or study they are treated fairly and learner from accessing such benefits, facilities with respect irrespective of their sexual or services orientation or faith or belief. • by not providing education for the learner Expanding equality legislation to include the • by excluding the learner protected characteristics of religion or belief and sexual orientation makes equality conflict an • by subjecting the learner to any other important consideration. Moreover, when the disadvantage because of their faith or belief law establishes exceptions and allows or their sexual orientation. discrimination on grounds of sexual orientation in This means learning providers must not harass delivering services and facilities an inequality of or victimise a learner or someone who wants to application of the law is institutionalised. Such an become a learner in the way it decides who to exception applies specifically to services provided admit, the terms on which it admits a learner or by religious organisations. These factors make it the way a person is treated when admitted. For more likely that equality conflicts on the grounds example, if a further education college refuses to of sexual orientation and religion or belief will admit a man who applies to be a learner because arise, and present significant challenges to higher he is gay, or if a university refuses to provide and further education organisations trying to residential accommodation to Jewish or Muslim employ staff and provide learning fairly. learners while providing accommodation for learners generally, they may be guilty of unlawful direct discrimination.

30 Managing the interface: sexual orientation and faith A guide for further education and higher education

Implementing the law: case law The council followed its disciplinary procedure A person’s religion or belief is likely to be when the employee refused to conduct civil personal to them. However an individual might partnerships because she believed that doing so have strong views that may relate to a religion would violate her religious beliefs. Ms Ladele while the requirements of a particular religion complained to an employment tribunal that she that apply to its followers may be different had been directly discriminated against and (Maleiha, 2009). This creates difficulties for policy subjected to unlawful harassment by her staff in further and higher education sector employer on grounds of her religion. The original organisations; for example deciding on what to tribunal upheld her complaint. However, this was promote as good religious practice, often in the overturned when the council appealed to the face of protests from those following the religion Employment Tribunal Appeal. who claim that this is not in keeping with the The Employment Tribunal Appeal held that Ms belief (Diamond, 2008). Ladele had not been directly discriminated against Cases of religion or belief and sexual orientation because the council had required all registrars to that are concerned with direct discrimination carry out civil partnership duties and so Ladele had tend to be concerned with how the person’s not been treated less favourably. The Employment faith or belief may be (in)compatible with their Tribunal Appeal accepted that the council’s professional obligations rather than with the requirement that all registrars perform civil validity of the individual claimant’s belief partnerships could potentially amount to indirect (Maleiha, 2009). discrimination because it placed Ms Ladele at a particular disadvantage when compared to those It is important to note that as well as who did not share her religious beliefs. However, employment, the sexual orientation regulations the requirement was justified as it was a also cover students at further and higher proportionate means of achieving the legitimate education institutions (regulation 20) (Trades aims of promoting equal opportunities and tackling Union Congress, 2009). discrimination. In addition the Employment Tribunal Appeal found that the council’s actions, Case 1: Islington v Ladele while at times insensitive, did not constitute Ms Ladele, a registrar of births, deaths and harassment on grounds of religion or belief. marriages following the introduction of the Civil Partnerships Act 2004, avoided carrying out civil The Court of Appeal considered the effect of the partnerships because they did not fit with her Equality Act (Sexual Orientation) Regulations Christian beliefs on marriage. She avoided 2007 which make it unlawful to discriminate on carrying out civil partnerships by swapping her grounds of sexual orientation in the provision of allocated duties with colleagues. A number of her public services. The Court of Appeal found it gay colleagues complained that this was unfair would have been unlawful discrimination under and that she should be required to comply with the 2007 Regulations for Ms Ladele to refuse to the council’s ‘Dignity for All’ policy. This policy perform civil partnership ceremonies. The committed the council to delivering its services council, therefore, was not only entitled but without discrimination. obliged to insist on her performing those duties.

31 Managing the interface: sexual orientation and faith A guide for further education and higher education

Case 2: Mr Mitchell v Strathclyde Fire and Rescue Case 3: Mr McFarlane v Relate A Christian fireman who was among a group of A relationship counsellor who refused to offer firefighters disciplined for refusing to hand out fire sex therapy to gay couples lost his unfair dismissal service leaflets at a gay pride march settled his appeal (Peacock, 2009). The marriage guidance religious discrimination claim before it reached an service Relate dismissed counsellor Gary employment tribunal. Mr Mitchell was one of nine MacFarlane after he said he could not do anything firefighters at a Glasgow fire station who refused to promote gay sex. He alleged Relate had to attend a gay pride march, with some claiming refused to accommodate his Christian beliefs. Mr that they were too embarrassed to attend in MacFarlane, a former church elder, was appealing uniform and others saying that their presence on the grounds of religious discrimination at the would be contrary to their moral beliefs. They Employment Appeal Tribunal. received a variety of disciplinary sanctions, from He started training with Relate in May 2003 and demotion to written warnings. They were also said he enjoyed good relationships with clients ordered to attend diversity training. and colleagues. Mr MacFarlane was suspended in Strathclyde Fire and Rescue has confirmed that it October 2007 after meetings with his manager, in reached a settlement with Mr Mitchell in relation which he claimed he was asked to state his views to his religious discrimination claim, with an regarding same-sex couples. After the suspension apology to him and agreement to prevent him was lifted he said he was labelled a ‘homophobe’ from discussing the case being part of the deal. and, following a further disciplinary hearing, was The case highlights the direct conflicts that can dismissed from his job. The tribunal dismissed Mr arise between legal protection on grounds of faith MacFarlane’s claims of harassment. or belief and sexual orientation. It shows that Ms Tyler, from Relate, commented, “Relate’s employers must tolerate belief and not subject trusted service relies on making sure that all staff to disadvantage because of their faith or members of society are able to access respectful belief or sexual orientation unless it is justified. and professional counselling and sex therapy. Relate Where religion or belief conflicts with the is committed to supporting all religious beliefs requirements of the job, an employer may be working within Relate. The appeal judgement able to justify the requirement. validates Relate’s commitment to equality of access to our services” (Peacock, 2009). The tribunal accepted Mr MacFarlane was not dismissed because of his Christian belief but because Relate believed he would not comply with the policy and requirement of his role. It found that it was a proportionate means of achieving the legitimate aim of providing a full range of counselling services to clients regardless of their sexual orientation. This case, and the Ladele case, show that employers can give priority to customers’ needs and place emphasis on having trust and confidence in their staff to deliver a service that is free from discrimination.

32 Managing the interface: sexual orientation and faith A guide for further education and higher education

Case 4: Apelogun – Gabriels v London Borough This is an important case on the dividing line of Lambeth between religion or belief and sexual orientation In this case an employee of Lambeth Council, discrimination. It makes clear that tribunals will be Mr T. Apelogun-Gabriels, a Christian, was reluctant to give latitude to homophobic actions dismissed in February 2006 by the London apparently based on the religious beliefs of the Borough of Lambeth after distributing a range perpetrators. It is an example of the delicate of biblical texts to a work-based prayer group balancing act between religion or belief and sexual and other ‘interested parties’ (Lambeth Unison orientation discrimination. Equal opportunities News, 2009). He used a search mechanism on policies should take account of both. However, a CD of the Bible to locate, download and clashes between the two will cause difficulties. print out a range of quotes, and distributed the Many trade union representatives and employers literature across the workplace. The extracts will be inclined to treat any homophobic were considered to be homophobic by his behaviour with the utmost seriousness and will employer. The Employment Tribunal dismissed examine with scepticism claims that it is protected Mr Apelogun-Gabriel’s claims for direct religious by the religion or belief regulations. The outcome discrimination and unfair dismissal, finding that it of Apelogun-Gabriels should encourage them that was his conduct rather than his religious beliefs that is the right approach, but situations may arise that was the cause of his dismissal. in which finding the right balance between the two is more difficult. The Employment Tribunal stated that the “material … on any view was totally hostile to those of a homosexual sexual orientation”, and the fact that the employer provided a prayer room showed that it did not seek to discriminate on grounds of religion or belief. The tribunal concluded that a non-Christian who distributed similar literature would have been treated in a similar fashion and that it was the complainant’s conduct in distributing homophobic literature which was the reason for his dismissal, not his religious beliefs.

33 Managing the interface: sexual orientation and faith A guide for further education and higher education

The Forum for Sexual Orientation and Gender Identity in Post-School Education (The Forum) The Forum for Sexual Orientation and Gender 3. Tangible action to increase the visibility of Identity Equality in Post-School Education (The lesbian, gay, bisexual and transgender lives Forum) was established in 2007. The Forum in education. brings together post-school education sector 4. A senior manager to lead on developing sexual partners to ensure a coordinated approach to orientation and gender identity equality. sexual orientation and gender identity equality within the sector. 5. Training for all staff and learners on sexual orientation and gender identity equality, The Forum’s vision is for a post-school education including legislation and standards of sector where: behaviour. • all learners and staff (actual and potential), 6. Information on sexual orientation and gender regardless of their actual or perceived sexual identity equality in staff and student induction. orientation or gender identity, are treated with dignity and equal respect and are enabled to 7. Incorporation in policies and procedures of realise their full potential relevant agreements on sexual orientation and gender identity equality, such as that • systematic action is undertaken to eliminate between the education unions and the all forms of discrimination, harassment and Association of Colleges. bullying around sexual orientation and gender identity 8. Involvement of staff and students’ unions in the promotion of sexual orientation and • sexual orientation and gender identity equality gender identity equality. are widely and consistently promoted alongside other equality strands, such as race, 9. Clear procedures for raising concerns about gender, disability, religion or belief and age, issues relating to sexual orientation and and embedded within a comprehensive gender identity. equality action plan. 10. Inclusion of sexual orientation and gender The Forum has identified the following twelve identity equality in single or full set of steps as its priorities in tackling discrimination equality schemes. and promoting equality for lesbian, gay, bisexual 11. Funding and development of strand specific and transgender staff and students in post- equality action groups, lesbian, gay, bisexual school education. and transgender support groups for staff 1. An explicit and well-publicised commitment and learners and other forms of organisation to tackle discrimination on the grounds of and support. sexual orientation and gender identity, 12. Incorporation of lesbian, gay, bisexual and including promotion equality for lesbian, gay, transgender learner issues into institutional bisexual and transgender staff and learners. improvement programmes. 2. Specific policy, procedure and action against homophobic, biphobic and transphobic bullying and harassment.

34 Managing the interface: sexual orientation and faith A guide for further education and higher education

Stonewall recommendations

The following are the ‘top ten tips’ taken from guidance produced by Stonewall: Religion and sexual orientation – how to manage relations in the workplace (2009: 32-33).

1. Acknowledge that it might be a problem – 6. Check job descriptions – some staff might organisations that recognise that there could think they do not have to carry out certain be potential opposition to sexual orientation tasks or responsibilities if this is not included equality have developed plans to counteract in their job description. Ensure that all job it. By thinking ahead, they have found it easier descriptions are compatible with equality and to respond when a problem has arisen. diversity strategies. 2. Develop clear strategies – all employees, 7. Bring groups together – organisations that service providers and suppliers should abide encourage groups of people such as lesbian by diversity and equality policies that include gay and bisexual gay staff and people of sexual orientation. Equality managers are faith to work together find that working able to point out how behaviour deviates relationships improve across the organisation. from these policies. Identify opportunities for joint working. 3. Decide where the line is, and be robust 8. Treat all parties with dignity and respect – about it – decide in advance what constitutes even if a member of staff seems to be acting in reasonable behaviour from all staff. Identify a discriminatory way, treat them with dignity what responsibilities fall to all staff and how and respect. Find ways to solve the problem, to respond if a member of staff refuses to rather than excluding or discriminating against fulfil those duties. the individual. 4. Get senior staff involved – senior support 9. The importance of mediation – bring in other for any position is essential if managers are parties in to help if two parties are struggling going to be confident about challenging to find common ground. Mediation and unreasonable behaviour. Organisations training is often more effective in the long must be consistent in their approach. term than disciplinary action. 5. Communicate strategies and explain them – 10. Using informal processes – if necessary. opposition sometimes comes from a lack of However, be prepared to use formal understanding. Ensure all staff understand disciplinary proceedings. Ensure that all why sexual orientation strategies are in place, policies and practices are robust. and how they might be implemented.

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