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Stuart Lauchlan

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Gay marriage: will a licence to marry really be a licence to sack?


Tonight MPs in the House of Commons will vote on whether or not to make same sex marriage legal. Despite vocal opposition from some elements in the Conservative party, the vote seems certain to be passed with Labour and Liberal Democrat support. 

The result will be a landmark one politically and socially.  But what should HR directors make of it all in the light of the repeated claims by opponents of equal marriage rights that mass sackings will follow across the public sector and faith-based organisations as a result? 
And how should HR directors interpret such opposition against the terms of the Equality Act 2010? Frankly, re-defining marriage was a lot simpler when Henry VIII did it…
Last week the Catholic Church made clear that it would support the removal of gay teachers in Catholic schools who participated in a same sex marriage (along with heterosexuals who had committed adultery, had sex before marriage or were divorced). 
While the Catholic Church would sack teachers on the basis of their sexual practices, other anti-same sex campaigners claim that teachers in both faith and non-faith schools, as well as other public sector employees, will face the sack for opposing gay marriage even when (and if) it becomes perfectly legal. 
"Ordinary people – teachers, parents, foster carers and those who work in the public sector – who back the traditional definition of marriage face being treated like outcasts, disciplined or sacked from their jobs,” claims Colin Hart, campaign director for the Coalition for Marriage – a loose alliance of groups and individuals opposed to same sex marriage which made the bold claim over the weekend that 40,000 teachers faced the chop. 
Scottish scare tactics?
The same tactic is being deployed north of the border in Scotland where Scotland for Marriage, an anti-gay marriage campaign group, has warned that the same-sex marriage bill there will somehow compromise civil liberty and that anyone opposing it could be sacked. 
A spokesperson for Scotland for Marriage warned that if gay marriage is legalised it will “impact on the civil liberties of ordinary men, women and children. We face the prospect of employees being sacked… schoolchildren could also be forced to attend homosexual lessons.”
(The spokesperson did not expand on what a ‘homosexual lesson’ was…)
The Equality Network, a charity promoting equal marriage in Scotland, dismisses this as “scare tactics” and points out that The Marriage and Civil Partnership (Scotland) Bill includes ‘a guarantee protecting free speech and “makes no changes that will affect education or employment” 
In Scotland, equal marriage rights seem certain to sail through the parliament with two-thirds of MSPs formally on the record as voting for same-sex marriage, including First Minister Alex Salmond, all Cabinet Ministers, and the leaders of all four opposition parties. 
Back at Westminister, Education Secretary Michael Gove has gone on a counter-offensive against claims of mass sackings for dissent. "Some teachers are concerned that equal marriage legislation may require them to teach views which go against their beliefs and open them to threats, either in the workplace or the courts, from those who hold diverging views," Gove says.
"If I thought any legislation, however well intentioned, would make life more difficult for great teachers and great schools, I wouldn’t support it. I have complete confidence in the protection our law offers freedom of conscience and speech.”
Gove also rejects the notion that teachers will be forced to promote same sex marriage, stating that they will simply not be allowed to discriminate against it. "Teachers will not be able to pretend that legal marriages between same-sex couples do not exist, but there will be no requirement to promote them," he says
Assuming tonight’s vote does go in favour of same sex marriage – and a battle to get it past the Lords begins – what are the implications for HR directors? The reality is that with new legislation in place, precedents will begin to be set, most likely as opponents of what will then be the law of the land try to find ways to avoid following it. 
For example, the Catholic Church set an early precedent when civil partnerships were first introduced to the UK with an abortive attempt to sack a gay school teacher in Liverpool who’d entered such a legal partnership.
That was stopped in its tracks, but it’s inconceivable that there will not be similar challenges attempted by anti-gay marriage people and organisations. 

HR advice 
So what to do from an HR point of view? Despite all the scaremongering by anti-same sex group,  Sue Ball, Director and Employment Lawyer with Verisona Solicitors and Advocates, suggests not much will change in practice, noting that the Equality Act 2010 created a single public sector equality duty, mirroring the structure of the previous duties in relation to sex, race and disability.
“Employers are entitled to require their employees to comply with their internal policies where these encompass the employer’s legal obligations, even if those policies require the employee to act in a way which conflicts with their own personal beliefs,” she explains. 
“While employers must ensure that there is no discrimination against employees for holding certain beliefs, they may on occasion be justified in taking action against employees who try to manifest those beliefs in a way which contradicts the employer’s own ‘fundamental ethos’ or commitment to serve the public, or leaves the employer vulnerable to liability for breach of their own legal obligations.”
What that means in effect is that it may not deemed unfair treatment if an employee is dismissed for refusing to do the job they are employed to do, even if to do that job goes against their personal belief in some way.
“Authorities are required to have regard to three matters when exercising this duty, including the requirement to foster good relations between those who share a protected characteristic, such as marriage and civil partnership, and those who do not share it,” adds Ball. 
“So public sector employers need to balance their obligations under S149 as against the need to treat employees fairly and without discrimination.  Although we are yet to see much by way of case law under the new legislation, many commentators believe the position of employees is unlikely to be greatly different than under the previous regime.”
Above all HR directors need to look at precedent already set. “HR departments must take heed of recent judgments in the European courts on this matter,” suggests Vernal Scott, Principal Consultant at Marshall ACM, an online diversity training and e-learning consultancy. 
“Employees have a right to their beliefs, but these must not hinder workplace operations. Once again, good training and information about equality laws and the moral responsibility to provide all services with excellence rather than personal beliefs in mind; that’s what organisations must do and it’s also what customers have a right to expect.
 Scott adds: “It is understandable that some people fear change, especially on a matter as significant as marriage. Information, training and time, are the solutions to this anxiety. Equality in love and marriage is the right way forward for a decent and modern society. The only losers are bigotry and ignorance. The Prime Minister and everyone else in support of this change is to be applauded.”

3 Responses

  1. It is fundamentally unclear to me…

     …as to how we’re ‘shutting down the debate’. 

    The article is here. You’ve responded to it and made your views known on this (as you have in the past on other subjects such as immigration caps). This is an open forum for debate and discussion. 

    Disagree with the article. Object to what people in it say by all means. 

    But protesting that somehow you’re not allowed to air your views or that they’re being swept under the carpet and that debate is being stifled is patently nonsense. 



  2. New Archbishop of Canterbury …..

    ‘.. We have made many statements about this and I stick with that ..’

    Church of England Statement –

    ‘.. To change the nature of marriage for everyone will be divisive and deliver no obvious legal gains given the rights already conferred by civil partnerships. We also believe that imposing for essentially ideological reasons a new meaning on a term as familiar and fundamental as marriage would be deeply unwise ..’

    ‘.. The assertion that ―religious marriage will be unaffected by the proposals is therefore untrue, since fundamentally changing the state‘s understanding of marriage means that the nature of marriages solemnized in churches and other places of worship would also be changed ..’

    Why don’t we just scrap the CofE and be done with the matter, because after all the Government takes no heed of their contribution and Mr Cameron is going that way anyway with ‘Succession’ & Catholicism – another badly though out proposal without satisfactory answers

    Both these badly thought out proposals are being forced through by a Government without providing adequate answers to fundamental questions – also with no mention in their manifesto, which means that the Conservative Government was potentially elected on a secret agenda; accordingly they do not necessarily have a mandate

    ‘.. Despite all the scaremongering by anti-same sex group ..’

    The issue here is that none of the ‘difficult’ questions have been addressed; instead they have been swept under the carpet. Furthermore, a considerable lobby has appeared to try and ‘shame’ opponents in this Equality race, despite some very valid objections to the proposal

    But never mind, if we shut down the debate then we can avoid the issues until they arise



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