European Commission to investigate whether ‘faith’ schools break European employment laws
The European Commission has written to the British Humanist Association (BHA) to say that they will investigate whether UK legislation around state funded ‘faith’ schools breaches European employment laws in relation to discrimination on the grounds of religion or belief. Their investigation comes in response to a complaint made by the BHA to the Commission in April 2010, in which the BHA argued that UK law allows much wider discrimination in who ‘faith’ schools can and cannot employ than the relevant European Directive. If the Commission rules against the UK legislation, then it is likely to have wide-ranging implications in limiting the amount of discrimination in religious schools. The BHA has welcomed the news that the European Commission is to investigate the matter.
In its complaint to the European Commission, the BHA argued that UK law illegally allows blanket discrimination by ‘faith’ schools in who they employ, instead of considering for each teaching post whether there is genuinely an occupational requirement that that particular teacher shares the faith of the school. The BHA also argued that UK law allows much too wide discrimination in discipline and dismissal of teachers, and may allow discrimination on the basis of sexual orientation and gender – which European law does not.
Having concluded their unrelated investigation into the Equality Act 2010 following the passage of that law, the Commission has now written to the BHA, commenting that ‘Our initial assessment is that [UK education law] raises questions about conformity of some of its provisions concerning employment in teaching posts with [the European employment directive].’ The Commission go on to state that they will now question UK authorities on the matter.
BHA Chief Executive Andrew Copson commented, ‘For years now we have seen religious teachers being given preference to work in state funded “faith” schools, not just when they would be expected to teach Religious Instruction or lead Collective Worship, but regardless of which subject they are applying for. With a third of state funded schools being religious, it is often much harder for staff of minority religions or of no religion to find employment.
‘There is no obvious reason why most teachers at “faith” schools need to share the faith of the school, and if there is, then the school can surely show that there is a genuine occupational requirement. It is the latter approach that European law requires, yet the blanket discrimination of the former approach that UK law erroneously permits.
‘We welcome the European Commission’s announcement that they are to investigate this matter, and look forward to the outcome of their investigation.’
The law explained
European Council Directive 2000/78/EC, which established ‘a general framework for equal treatment in employment and occupation’, sets out in Article 4.2 that organisations with an ethos based on religion or belief, such as ‘faith’ schools, can treat persons differently in recruitment and employment on the grounds of religion or belief where there is ‘a genuine, legitimate and justified occupational requirement’.
However, the BHA’s complaint argued that UK law on ‘faith’ schools permits wider discrimination than this. Section 60(5) of the School Standards and Framework Act 1998 allows Voluntary Aided schools, Academies and Free Schools with a religious character to religiously select all teaching staff, and allows Voluntary Controlled schools and Foundation schools with a religious character to do likewise for up to a fifth of staff. This is regardless of whether there is ‘a genuine, legitimate and justified occupational requirement’.
The law allows schools to dismiss or discipline teachers for ‘conduct… that is incompatible with the precepts or with the upholding of the tenets of the religion or religious denomination so specified’, rather than simply their religion or belief – which is all European law permits. Finally, the BHA argued that UK law does not specify that no discrimination on any other ground is allowed. This could lead to ‘faith’ schools discriminating against teachers on grounds of sexual orientation or gender, which European law does not permit.
Schedule 9(3) of the Equality Act 2010 sets out that religion or belief organisations can only religiously discriminate in who they employ if there is an occupational requirement; however, Schedule 22(4) exempts section 60(5) of the of the 1998 Act from the 2010 Act, therefore allowing wider discrimination in ‘faith’ school employment.