Amicus MSF Section, R (on the application of) v Secretary of State for Trade and Industry

Implementing regulations must be construed purposively so far as possible to conform with the directive they implement, while remaining sufficiently precise and clear to satisfy legal certainty. A derogation from protection against discrimination may be defined by detailed legislation rather than left entirely to case-by-case assessment, provided its conditions are strictly construed and remain within the directive’s limits.

The exceptions for occupational requirements, religious employment, related vocational training and benefits dependent on marital status were lawful. Regulation 7(3) had a narrow scope and required objective satisfaction of its conditions. The regulations did not reduce pre-existing protection or unlawfully interfere with Convention rights.

Six judicial review claims were brought by trade unions against exceptions in the Employment Equality (Sexual Orientation) Regulations 2003. The regulations implemented Council Directive 2000/78/EC and generally prohibited discrimination on grounds of sexual orientation in employment and vocational training.

The claimants challenged regulations 7(2), 7(3), 20(3) and 25. They alleged incompatibility with the Directive, articles 8 and 14 of the Convention, the prohibition on reducing existing protection, and the common law principle of legality. The central questions were whether the exceptions were ultra vires, insufficiently certain or disproportionate.

1. Outcome. All six claims were dismissed. The impugned provisions were compatible with the Directive, the Convention and domestic law.
2. Interpretation of implementing measures. Under section 2(2) of the European Communities Act 1972, regulations implementing a directive had to be construed purposively, so far as possible, to achieve the directive’s result. That interpretative obligation could be considered when assessing the validity of detailed implementing regulations. It did not remove the requirement of legal certainty.
3. Regulation 7(2). The requirement of a legitimate objective was implicit in the requirements that the occupational requirement be genuine, determining and proportionate. The provision allowing an employer reasonably to remain unsatisfied that the requirement was met was within article 4(1) of the Directive. Reasonableness prevented reliance on mere assumptions or stereotyping. Properly conducted inquiries were not necessarily harassment or an unjustified interference with article 8.
4. Regulation 7(3). The religious-employment exception was a lawful and narrow implementation of article 4(1). Employment had to be for the purposes of an organised religion, not merely a religious organisation. The conditions concerning doctrine, the nature and context of employment, strongly held religious convictions and a significant number of followers were objective limitations. The provision did not remove effective access to a court or tribunal, which retained the task of deciding whether its conditions were met.
5. Regulation 20(3). The exception for further and higher education was confined to vocational training which would only help fit a person for employment to which regulation 7 could lawfully apply. General education, such as a theology degree with broader purposes, was outside the exception.
6. Regulation 25. The Directive’s recital 22 excluded benefits dependent on marital status, including occupational surviving-spouse benefits. Alternatively, the exception was objectively justified by social-policy considerations and the State’s margin of discretion.
7. The regulations did not reduce the pre-existing level of protection. They added rights, while limiting the scope of the new statutory rights. Nor did they interfere with article 8 rights or produce discrimination in the enjoyment of Convention rights within article 14.