Four years after the British Humanist Association (BHA) complained to the European Commission (EC) alleging that UK law breaks European law in allowing widespread discrimination in employment by ‘faith’ schools, and two years after the Commission took the matter up as the subject of a formal investigation, the Commission has decided that there is in fact no breach of the relevant legislation. The BHA has expressed its disappointment and confusion at the decision, which has come with very little explanation.
The European Employment Directive only allows employers to discriminate against employees on the basis of religion where there is ‘a genuine, legitimate and justified occupational requirement’ (GOR) that the employee shares the faith of the school. The Equality Act 2010 recreates GOR law in UK law, except that there is an exemption for religious schools allowing them to require every single teacher to share the faith of the school. This allows them to go far beyond where a GOR can be claimed, and was the basis of the BHA’s complaint.
In its decision, the EC has opaquely said, ‘After careful analysis of all relevant elements, we have come to the conclusion that the UK has provided sufficient clarification as regards its narrow interpretation of Sections 58 and 60 [the relevant law], which merely enables the faith-based education and is limited to ensure the maintenance of the religious character of the school. We consider that such an interpretation is in line with Article 4 of the Directive.’
BHA Chief Executive Andrew Copson commented, ‘We are very disappointed with this decision, and will be seeking a full explanation as to on what basis it was reached so that we can plan our next steps.
‘It is fundamentally wrong that children are denied access to the best teachers when schools prioritise whom they employ not on the basis of who the best candidate for the job is, but also on the basis of religion. How can it possibly be right that many “faith” schools require the maths teacher, the PE teacher or the science teacher to share the religion of the school? There is clearly no “genuine occupational requirement” that any of these individuals are religious, but UK law allows discrimination in this way. It urgently needs to be amended and in refusing to say as much the EU Commission has seriously failed in its responsibilities. It is a failure of justice and transparency.’
For further comment or information, please contact Andrew Copson on 07534 248596.
What happened in more detail
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’.
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’ – which plainly cannot be said to be the case for every single teacher.
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.
In papers submitted by the UK Government last year in the case and seen by the BHA, the Government attempted to argue that there is no breach of EU law because ‘if a teacher brought a claim against a school (on the basis that the school, as an employer, had discriminated against them in their remuneration, for example), then the court or tribunal would consider the legislation in this wider context. There is a well-established principle in English and European law that legislation, to the extent possible, must be construed as being consistent with the requirements of European law. If that is not possible, it is to be dis-applied to the extent required for consistency with European law. Bearing this in mind, section 60(5)(a) could and would, if necessary, be construed and applied by a court or tribunal as permitting preferential decisions on grounds of religious belief, only to the extent that such decisions were consistent with genuine, legitimate and justified occupational requirements.’ In other words, UK law would be reinterpreted as being in line with EU law – i.e. not permitting wider discrimination than GOR.
But this argument is not sufficient. First of all, it is not at all clear that a court or tribunal would consider the Directive, as this would require the complainant to think to raise it as an issue: something that seems unlikely given the complete absence of any previous statements by the Government to match the one given here. For instance, the Scottish Government provided an example case where this had not happened.
Secondly, and more importantly, it is not considered acceptable by the European Court of Justice for a national Government to inadequately implement a Directive, instead relying on domestic courts to resolve the difference. In Infringement No 2006/2450 (para 8), the European Commission came to precisely this conclusion itself.
Thirdly, it is surely also important whether or not faith schools believe that they ‘have an unfettered discretion in terms of being able to give unrestricted preference in respect of any teacher’. The Catholic Education Service for England and Wales, the largest provider of secondary schools in the UK and second largest provider of primary schools, believe they do have such unfettered access: their policy documents state that every teacher in every Catholic school can be required to be a Catholic. It is also stated that schools should give preferential treatment to Catholics for every teaching post in the first instance.
Finally, nowhere in the public domain has the UK Government suggested that UK law only allows faith schools to discriminate where there is a GOR. Its own Equality Act advice for schools says ‘Voluntary-aided schools may apply religious criteria when recruiting or dismissing any member of their teaching staff… Religious criteria may not be applied to any other posts in a VA school unless there is a genuine occupational requirement.’ This seemingly makes plain that the Government’s view is that VA schools can discriminate against teachers when there is not a GOR. The only suggestion that this is not the case is the private papers the UK Government submitted to the EC.
How the EC got from here to finding no breach of the Directive is unexplained.
Read the BHA’s complaint from April 2010: https://humanism.org.uk/wp-content/uploads/bha-complaint-to-the-european-commission-on-employment-in-faith-schools.pdf
Read the European Commission’s letter in deciding to take up the case: https://humanism.org.uk/wp-content/uploads/european-commission-response-to-bha-complaint-on-employment-in-faith-schools.pdf
Read the BHA’s response to observations of the United Kingdom Government from July 2013: https://humanism.org.uk/wp-content/uploads/BHA-comments-on-UK-Government-observations-final.pdf
Read today’s letter from the European Commission: https://humanism.org.uk/wp-content/uploads/EU-Pilot-3800-12-JUST.pdf
Read more about the BHA’s campaigns work on ‘faith’ schools: https://humanism.org.uk/campaigns/religion-and-schools/faith-schools
View the BHA’s table of types of school with a religious character: https://humanism.org.uk/wp-content/uploads/schools-with-a-religious-character.pdf
The British Humanist Association is the national charity working on behalf of non-religious people who seek to live ethical and fulfilling lives on the basis of reason and humanity. It promotes a secular state and equal treatment in law and policy of everyone, regardless of religion or belief.