Equality Act 2010 Sch.9 para.2 – Religious requirements relating to sex, marriage etc., sexual orientation

2 (1) A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to employment a requirement to which sub-paragraph (4) applies if A shows that—

(a) the employment is for the purposes of an organised religion,

(b) the application of the requirement engages the compliance or non-conflict principle, and

(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

(2) The provisions are—

(a) section 39(1)(a) or (c) or (2)(b) or (c);

(b) section 49(3)(a) or (c) or (6)(b) or (c);

(d) section 51(1);

[^F315 (e) section 60A(1).^F315]

(3) A person does not contravene section 53(1) or (2)(a) or (b) by applying in relation to a relevant qualification (within the meaning of that section) a requirement to which sub-paragraph (4) applies if the person shows that—

(a) the qualification is for the purposes of employment mentioned in sub-paragraph (1)(a), and

(b) the application of the requirement engages the compliance or non-conflict principle.

(4) This sub-paragraph applies to—

(a) a requirement to be of a particular sex;

(b) a requirement not to be a transsexual person;

[^F316 (ca) a requirement not to be married to[^F317 , or the civil partner of,^F317] a person of the same sex;^F316]

[^F318 (cb) a requirement not to be the civil partner of a person of the opposite sex;^F318]

(d) a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;

(e) a requirement relating to circumstances in which a marriage or civil partnership came to an end;

(f) a requirement related to sexual orientation.

(5) The application of a requirement engages the compliance principle if the requirement is applied so as to comply with the doctrines of the religion.

(6) The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.

(7) A reference to employment includes a reference to an appointment to a personal or public office.

(8) In the case of a requirement within sub-paragraph (4)(a), sub-paragraph (1) has effect as if in paragraph (c) the words from “(or” to the end were omitted.

Definitions used in Schedule 9, paragraph 2 1

employment: “employment” and related expressions are (subject to subsection (11)) to be read with section 83;
Defined in s.212(1) · see it in the full Act

Cases considering Schedule 9, paragraph 2 3

Pemberton v Inwood

[2018] EWCA Civ 564 · 22 March 2018Interprets

The court held that the religious exception applied to the refusal of the EPML. It did not operate as a direct defence to harassment, but its lawful application was material to the section 26 assessment. (see paras [61]–[66]; [75]–[76]) The court held that paragraph 2(3) exempted the relevant-qualification decision once its employment-purpose and compliance-principle conditions were met. (see paras [50]; [61]–[66]; [80]–[84]) Employment can be for the purposes of an organised religion although a secular body is the employer and the role has other functions. The decisive feature was that a central and necessary part of the role was acting as a licensed Church of England minister. (see paras [61]; [81]) The court held that the requirement not to be married to a person of the same sex was applied so as to comply with the Church’s doctrines, as defined by paragraph 2(5). (see paras [62]–[66]; [82]–[84]) The court treated the requirement not to be married to a person of the same sex as a requirement capable of falling within the religious exception. (see paras [47]; [80]; [84]) “Doctrines” means the teachings and beliefs of the religion, not merely a narrower internal technical category. The court held that Canon B30 and the House of Bishops’ Pastoral Guidance evidenced the relevant Church teaching, without requiring the court to resolve theological debate. (see paras [62]–[65]; [82]–[84])

2 more judgments, and what each says about Schedule 9, paragraph 2, are in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Amendments

F315Sch. 9 para. 2(2)(e) inserted (1.1.2024) by The Equality Act 2010 (Amendment) Regulations 2023 (S.I. 2023/1425), regs. 1(2), 4(6)(b)
F316Sch. 9 para. 2(4)(ca) inserted (13.3.2014) by Marriage (Same Sex Couples) Act 2013 (c. 30), s. 21(3), Sch. 7 para. 45; S.I. 2014/93, art. 3(k)(iv)
F317Words in Sch. 9 para. 2(4)(ca) inserted (E.W.S.) (2.12.2019) by The Civil Partnership (Opposite-sex Couples) Regulations 2019 (S.I. 2019/1458), regs. 1(2), 11(a)
F318Sch. 9 para. 2(4)(cb) inserted (E.W.S.) (2.12.2019) by The Civil Partnership (Opposite-sex Couples) Regulations 2019 (S.I. 2019/1458), regs. 1(2), 11(b)