This article features in Public Spirit’s special theme on Equalities and Religious Difference.
In public discussions about faith schools, the most high-profile and contentious debates have focused on the admission of pupils. Yet discrimination against teachers on the basis of faith or belief is just as significant an issue, especially because schools are treated in English law differently to other organisations with a faith ethos. Indeed, the coming months may see a clash between English and European equality law on this issue.
The state school system in England has long contained large numbers of schools with a religious ethos, due to the historical involvement of churches in the development of universal education in the country. However, new schools are being added to this number with the creation of ‘free’ schools with a religious character, and the involvement of faith based organisations in the sponsorship of academy schools. The continued and growing profile of faith schools raises a number of issues relating to the role of religion in our society. The most high-profile and contentious issue has involved admission of pupils. However, employment terms of teachers at faith schools is also a matter of increasing concern, with the European Commission currently investigating a complaint against the government that the UK law governing religious discrimination against teachers in faith schools is in breach of European equality law.
Any discussion of the protection of teachers in faith schools from religious discrimination raises a number of issues. A preliminary question is, of course, whether state-funded schools should be allowed to operate with a religious ethos at all. But even if one accepts faith schools, a secondary question arises, which is why, when it comes to religious discrimination, schools should be treated differently from other organisations run along religious lines.
“Even if one accepts faith schools, a secondary question arises, which is why, when it comes to religious discrimination, schools should be treated differently from other organisations run along religious lines.”
In contexts other than education, religious organisations are allowed some freedom to reflect their religious ethos in their employment practices. Under the Equality Act 2010, and in accordance with the EU Equality Directive, religious organisations are prohibited from discriminating against staff on grounds of religion unless belonging to a specific faith is an occupational requirement for a role. Prison chaplains may serve as an example of a job where there is a legitimate occupational requirement to be of a particular religion. In assessing whether the occupational requirement is justified the religious ethos of the organisations can be taken into account. The concept of justification is key to any assessment of occupational requirements; the employer will need to identify a legitimate aim for any requirement, and the means for achieving that aim will need to be proportionate. This will involve an assessment of the type of employment and its religious context, such as the extent to which organisation is permeated by the particular religious ethos. So, for example, in the case of Muhammed v The Leprosy Mission International the Leprosy Mission (a Christian charity) was allowed to refuse applications from non-Christians, because Christianity permeated the organisation, with prayers starting each day. Employing a non-Christian would have had a significant impact on the ability of the organisation to maintain its ethos, whereas the finance administrator who was refused a job would have the chance to work elsewhere.
In contrast, the legal regime governing employment in faith schools is much more favourable to the religious employer: religious discrimination is allowed in appointments, and there is no requirement that religious requirements be proportionate. If the school is a faith school, no further questions are asked. Decisions to impose religious requirements on teaching staff are not fettered by any requirements of proportionality.
The provisions governing staff in faith schools are found in Sections 58 and 60 of the School Standards and Framework Act 1998. The rules vary according to the type of state school involved. The different types of school are all state faith schools, but vary on a number of issues such as whether the local authority or the school owns the buildings and whether the school or local authority is in charge of admissions. The designation is not based on the level of religious input or the extent to which a Christian ethos is promoted within the school.
Voluntary Controlled and Foundation faith schools can apply religious requirements on up to a fifth of their teachers. This allows schools to ensure that they have sufficient staff sharing the religious ethos of the school to provide religious education and pastoral care. Voluntary Aided faith schools, in contrast, can impose religious requirements on all teaching staff, whatever their duties. The most recent trend in state schooling, the expansion of the academy status for schools, means that many schools have moved to academy status. These schools are governed by similar rules to those governing Voluntary Aided faith schools.
“In practice, faith schools vary hugely in their religiosity: a school may be a Voluntary Aided Church of England school, but its ethos may be very multi-cultural.”
The School Standards and Framework Act (SSFA) goes further in the case of Voluntary Aided Schools and some faith based academies. Schools in this category may not only take account of religion in deciding who to employ but may also take into account religious practice in deciding on promotion, remuneration or dismissal; and staffing decisions can take into account whether staff attend religious worship and are willing to give religious education at the school. Further, voluntary aided faith schools can take account of any conduct which is ‘incompatible with the precepts, or with the upholding of the tenets, of the religion’ in deciding to terminate employment.
The rules governing state faith schools, then, are hugely more restrictive to the freedom of religion of teachers than the rules governing employment in religious ethos charities or other such organisations. They apply to a sector which is almost entirely state-funded, and covers up to a third of primary schools and an increasing number of secondary schools. Moreover, they apply regardless of how religious the organisations feel on the ground. In practice, faith schools vary hugely in their religiosity: a school may be a Voluntary Aided Church of England school, but its ethos may be very multi-cultural, and the school may embrace and celebrate many faiths.
These restrictions on the employment of teaching staff have the capacity to significantly affect the career prospects of large numbers of teaching staff who are unable to teach across the full range of state schools. It could be argued that although these rules seem restrictive on paper, in practice they pose little threat to the employment prospects of staff. However, there are several reasons why this is not the case. First, as shown above, the number of these schools is increasing. This means that the range of jobs open to staff who do not share the faith of the largest faith groups is limited. This can cause particular difficulties when it comes to applying for headships as schools tend to be more careful to ensure their headteacher shares the faith of the school.
Second, there is growing evidence that employment prospects of staff are indeed affected. The Accord Coalition has collated a range of testimonials from teaching staff, demonstrating the impact that these rules can have on individual careers. For example, one head teacher recounts having to resign from a Catholic school because he wished to remarry, contrary to the teaching of the Catholic Church. Another teacher recounts not being considered for posts in faith schools, despite a willingness to support the ethos of the school.
Moreover, there is evidence that faith groups are increasingly willing to rely on these restrictions as the role of the church in the provision of education continues its shift from one of service to one of mission. Current strategies of the Church of England, the biggest provider of faith schooling, are to use Church schools as a vehicle for outreach to local communities in which the schools are situated, in order to provide an experience of Christianity, and teach the Christian faith, in an era when church attendance is falling.
Finally, the unfettered discretion allowed to faith schools to require religious observance of staff is currently incompatible with the requirements of the EU Employment Equality Directive. Article 4(2) of the Directive allows for exceptions allowing religious organisations to maintain a religious ethos and require loyalty of staff to that ethos, but only where such exceptions constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. The SSFA’s exceptions are much broader. If the SSFA were to be amended to include a requirement of proportionality (as is the case with regard to occupational requirements for other religious organisations) this would bring English law into compliance with EU Equality Law. It would require schools to consider a wide range of issues before imposing religious requirements on staff, just as other religious employers have to do. For example, it would require a basic balance to be struck between the rights of religious organisations to maintain a religious ethos, and the rights of teachers to pursue their careers free from religious discrimination. An additional benefit of using a proportionality standard to assess religious discrimination in schools is that it would enable some standardisation of treatment as between religious discrimination and other non-discrimination grounds. The fact that in up to a third of state schools teachers can face legitimate religious discrimination stands in stark contrast to the protection available for other types of discrimination: it is clear if a third of jobs were reserved for men, for example, this would be unacceptable, and attempts to argue that other employers accept women, or that this is a response to ‘parental choice’ would not cut much ice as a defence to a sex discrimination claim.
“The fact that in up to a third of state schools teachers can face legitimate religious discrimination stands in stark contrast to the protection available for other types of discrimination.”
Clearly it is always going to be difficult to balance the rights of faith organisations to retain a religious ethos with the rights of staff to be free from religious discrimination. But in most contexts this difficulty is addressed by requiring proportionality in the imposition of any faith requirement, enabling factors such as the nature of the job and the extent to which religious belief is a defining element, the size of the undertaking, the extent to which other employment opportunities are available to potential applicants, and many other contextual factors to be taken into account. In the case of faith schools in England, the SSFA effectively deems religious discrimination to be proportionate, regardless of any other factors that might point towards such a requirement being disproportionate. This is almost certainly incompatible with the EU Directive protecting all workers from religious discrimination. We wait to see how the Government responds to the European Commission’s investigation on the issue.
Lucy Vickers is Professor of Law at Oxford Brookes University. She is the author of Religious Freedom, Religious Discrimination and the Workplace, (2008) Hart Publishing, Oxford.
 Jeevan Vasagar, ‘Third of New Free Schools Are Religious’, The Guardian, 13 July 2012, http://www.theguardian.com/education/2012/jul/13/third-new-free-schools-religious.
 British Humanist Association, ‘European Commission to Investigate Whether “Faith” Schools Break European Employment Laws’, British Humanist Association, accessed 21 October 2013, https://humanism.org.uk/2012/07/24/news-1084/.
 See further Lucy Vickers, ‘Religion and Belief Discrimination and the Employment of Teachers in Faith Schools’, Religion and Human Rights 4, no. 2–3 (2009): 137–156; Lucy Vickers, ‘Religious Discrimination and Schools: The Employment of Teachers and the Public Sector Duty’, in Law, Religious Freedoms and Education in Europe, ed. Myriam Hunter-Hénin (Aldershot: Ashgate, 2011).
 Although faith schools are given a degree of financial support from the church, faith state schools are almost entirely state funded: the state pays the running costs of the school, although depending on the governance structure of the school, it may not own the buildings.
 Directive 2000/78
 See Schedule 9, Equality Act 2010.
 16 Dec 2009, ET/2303459/09.
 The Church of England estimates that there are 54,000 more students are receiving secondary education in a Church of England establishment in 2012 than there were in 2001. The Church School of the Future Review, March 2012, Church of England Archbishop’s Council Education Division and the National Society (http://www.churchofengland.org/media/1418393/the%20church%20school%20of%20the%20future%20review%20-%20march%202012.pdf accessed 29th July 2013)
 Accord Coalition, Testimonies and Media Reports of Discriminatory and Exclusive Practices by Faith Schools (Accord Coalition, 2013), http://accordcoalition.org.uk/wp-content/uploads/2013/08/Personal-testimonies-2013-AUG-FINAL.pdf.
 See Lucy Vickers, ‘Religion and Belief Discrimination and the Employment of Teachers in Faith Schools’.
 Church Schools Review Group, The Way Ahead: Church of England Schools in the New Millennium (London: Church House Publishing, 2001); Church of England Archbishop’s Council Education Division and The National Society, The Church School of the Future Review (Church of England Archbishop’s Council Education Division, March 2012), http://www.churchofengland.org/media/1418393/the%20church%20school%20of%20the%20future%20review%20-%20march%202012%5B1%5D.pdf.
The image of Lazonby Church of England school is included courtesy of Trevor Harris and is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic License. The image of the ‘Read Balloon’ mathematics lesson in Cambridge is included courtesy of Wikimedia Commons and is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported License.