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BHA sounds the alarm over Brexit and illegal discrimination in ‘faith’ school employment

Many ‘faith’ schools are currently unlawfully discriminating against teachers on the basis of religion.

The British Humanist Association (BHA) has expressed concern that the UK’s impending exit from the European Union could make legal widespread but currently illegal religious discrimination against current and potential teachers by religious schools. The issue, which exists across England, Wales, and Scotland, follows on from the conclusion of a long-running investigation by the European Commission into the matter, which concluded earlier last year.

Currently, the UK is bound by the European Employment Directive, an EU law that says employers may only discriminate against employees on the basis of religion or belief where there is ‘a genuine, legitimate and justified occupational requirement’ (GOR) that such discrimination occurs – for example, requiring clergy to share the faith of the church.

However, domestic legislation goes further than this, providing a specific exemption for ‘faith’ schools in England and Wales to require every single teacher to share the faith of the school, regardless of whether a GOR can be claimed or not. Similarly, in Scotland, a religious school can require every member of staff to be endorsed by a religion or belief body, again regardless of whether a GOR could be claimed. Last year, the Equality and Human Rights Commission (EHRC) concluded that this discrimination is ‘arbitrary’, goes beyond what is permitted by European legislation, and should be reviewed.

In 2010 the BHA complained to the European Commission about this, leading it to launch a formal investigation in 2012. That investigation was still going on in 2015, and by that time had seen the UK Government privately shift its position from saying domestic legislation is compatible with the Directive to saying that if the matter came to court, then European case law means the courts would reinterpret UK law in line with the Directive – providing a partial victory to the BHA.

However, it can now be revealed that in early 2016 the European Commission closed the long-running case, without giving any reason for doing so. Whether fears of an impending Brexit vote motivated this is impossible to say. But, regardless, now that a Brexit vote has happened, the BHA is concerned that if the UK pulls out of the European Employment Directive, then the UK courts would have no reason to reinterpret UK employment legislation in line with it.

In other words, widespread discrimination which currently unlawfully occurs would become lawful, with no legal mechanism to tackle it.

In response to a parliamentary question in December last year, asked by All Party Parliamentary Humanist Group member Graham Allen MP, Schools Minister Nick Gibb rejected the EHRC’s calls for domestic legislation to be reviewed, and claimed that ‘Employment, equality and human rights law applies to the employment practices of all schools, and they must act reasonably and proportionately. We have not been made aware of any firm evidence that schools are acting outside of this framework’ – despite ample such evidence having been provided by the BHA in the Commission case.

BHA Director of Public Affairs and Policy Richy Thompson commented, ‘The UK and Scottish Governments urgently need to amend the law to stop widespread discrimination against teachers on the basis of religion. It is outrageous that even where such discrimination cannot be said to be legitimate and justified it is still permitted under domestic legislation, and even worse that we may be shortly facing a situation where there is no requirement to reinterpret UK law in a way that this is not the case.

‘We urge the Government to take seriously the EHRC’s findings and review the law as the EHRC suggests.’

Notes

For further comment or information please contact BHA Director of Public Affairs and Policy Richy Thompson on richy@humanism.org.uk or on 020 7324 3072.

For more details, the BHA has recently submitted evidence to both the Joint Committee on Human Rights and Women and Equalities Select Committee on the matter:

Read the recent BHA news item, ‘Equality and Human Rights Commission argues for review of law to limit religious discrimination’: https://humanism.org.uk/2016/12/02/equality-and-human-rights-commission-argues-for-review-of-law-to-limit-religious-discrimination/

Read the 2015 BHA news item, ‘European Commission re-opens investigation into whether UK ‘faith’ school laws break European employment laws as UK Government shifts position’: https://humanism.org.uk/2015/02/20/european-commission-re-opens-investigation-whether-uk-faith-school-laws-break-european-employment-laws-uk-government-shifts-position/

Read more about the BHA’s campaigns work on ‘faith’ schools: http://www.humanism.org.uk/campaigns/religion-and-schools/faith-schools

View the BHA’s table of types of school with a religious character: http://www.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.

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