Schools, shibboleths and employment law

Mark Jones is a partner at Ormerods solicitors, a member of the Lawyers Christian Fellowship and an employment law specialist. His clients have included a number of FTSE 100 companies and ‘household names'. He now focuses on assisting Christians and Christian organisations. Mark successfully acted in the High Court opposing the judicial review challenge to the discrimination law exemptions available to Christian employers. Between 2002 and 2004, at the invitation of the Confederation of British Industry (CBI), Mark has represented the interests of all UK employers at the International Labour Organisation's annual conference in Geneva. 

Faith, law and discrimination
The Employment Equality (Religion or Belief) Regulations 2003 came into force on 2 December 2003. Guidance on the Regulations is available online from the Advisory, Conciliation and Arbitration Service (www.acas.org.uk), but does not appear to have been written with a deep personal understanding of (or sympathy for) the Christian faith or the practical difficulties the Regulations create for Christian employers.

What is ‘religion or belief'? The Regulations prohibit direct and indirect discrimination (and harassment) on the grounds of ‘religion or belief'. This is defined as meaning ‘any religion, religious belief or similar philosophical belief'. Clearly it covers Christianity.

Who is protected? The Regulations cover those ‘personally contracted to do any work'. This includes employees, apprentices, agency workers and contractors. Ex-employees and job applicants are also protected.

There is some dispute as to whether those who have an absence of belief are protected. I cannot see such arguments being sustainable before the Courts (or, if they are, amending legislation will follow swiftly).

Direct discrimination
This occurs when a school or a staff member treats a protected person less favourably on the specific grounds of their religion or belief (or absence of belief) e.g. because they are (or are not) from a specific Christian denomination.

Direct discrimination would include refusing to interview/employ/promote someone or dismissing them because they are not a Christian. The intent of the discriminator is irrelevant.

According to the guidance, direct discrimination ‘on grounds' of religion or belief can also include discrimination based on perception of religion or belief, whether or not the perception is right. This means that a person will be able to bring a claim even if the discrimination was based, say, on (incorrect) assumptions about their faith or lack of it.

In addition, direct discrimination covers discrimination against a person by reason of the religion or belief of someone else. For example a person who is discriminated against because they associate with atheists or because they refuse to carry out an employer's instruction to discriminate against Muslims. Whether or not such discrimination would be unlawful is another question.

Indirect discrimination
Indirect discrimination occurs when a provision, criterion or practice:
(i)   is applied to an individual by a person or organisation; and
(ii)  applies equally to other people who do not have that individual's religion or belief; and
(iii)  puts the people of the individual's religion or belief at a disadvantage; and
(iv) means that the individual suffers a disadvantage; and
(v)  cannot be shown to be a proportionate means of achieving a legitimate aim.

For example, a school may require that all of its staff regularly attend a particular denomination of church (as opposed to simply requiring them to be able to profess a faith). This would be unlawful indirect religious discrimination if the school was not able to justify this provision. Alternatively there may be a requirement that staff work on Saturdays, which may indirectly discriminate against Seventh Day Adventists.

Exemptions
There are circumstances in which it is possible to lawfully discriminate. A distinction must be drawn between discrimination (which may be both necessary and legal) and unlawful discrimination.

Regulation 39 Faith-based schools do not have to jump through all these hoops. Regulation 39 makes clear that the existing protections for Church schools in the state sector are maintained (e.g. Schools Standards and Framework Act 1998).

These existing protections make provision for Church schools to appoint teachers on the basis of their faith or dismiss them if their conduct becomes inconsistent with the beliefs of the denomination.

In Board of Governors of St Matthias Church of England School v Crizzle (1993), the Employment Appeal Tribunal confirmed that although the failure of the Governors of an Anglican school to appoint a Roman Catholic as headteacher was potentially discriminatory against her as an Asian, it was not unlawful under the Race Relations Act 1976 because they were pursuing a reasonable and justifiable objective in seeking to appoint an Anglican.

Similar freedoms are given to Independent Christian schools in England and Wales as long as they register their religious ethos with the Department of Education.

Regulation 7 – Genuine Occupational Requirement The Regulations state that treating job applicants differently on the grounds of their religion or belief (or failing to offer promotion, a transfer or training for a post on such grounds) will not be either directly or indirectly discriminatory if being a Christian is a ‘genuine occupational requirement' (‘GOR'). My view is that this may also extend to their holding a specific belief (that may be considered necessary by some to be a Christian but not by others).

This defence falls into two categories. The first category provides that discrimination can occur if, having regard to the nature of the employment or its context, being of a particular religion is a genuine and determining occupational requirement for the job and it is proportionate to apply that requirement. This defence can be used regardless of the ethos of the employer. For example, it may be a requirement for a school chaplain to be a Christian, although the school may not have a Christian ethos.

The second category is where the employer has an ethos based on religion or belief and, having regard to that ethos and the nature of the employment, being a Christian is a GOR and it is proportionate to apply that requirement. For example, it may be a GOR for the headteacher of a Church of England school to be a practising Christian, because of the nature of her/his role as the leader of a Christian learning community with an explicit Christian ethos. However, without more information, it will be an uphill struggle to persuade a Court or Tribunal that the caretaker of a Church of England school needs to be Christian.

In both cases, the GOR needs to be ‘proportionate'. Therefore if there is another non-discriminatory way of achieving the desired effect the Regulations will be breached (for example if without any difficulty the ‘Christian' aspects of a particular vacancy may be delegated to others). Similarly, the GOR is a case of ‘using a sledgehammer to crack a nut'. For example, you cannot simply bolt on a duty for every employee to be prepared to lead staff prayers as a way of ensuring you only employ Christians.

Practical Steps
Identifying a GOR If there is a GOR, this should be identified at the outset of any recruitment process. It should also be documented. It should reflect existing foundational documents and other information about the school and how it is run and ultimately be reflected in any job description/person specification.

Advertisements If you are relying on a GOR, there are two possible approaches when recruiting. One option would be to avoid raising the issue at all until the last possible moment (if it becomes relevant) – thereby not drawing unnecessary attention to what may be a contentious issue and encouraging litigious activists. Alternatively, be quite blunt about the GOR and make this crystal clear in any advertisement, etc. Whilst it may be more likely to expose an organisation to troublemakers, I have to recommend the latter approach because: (a) the more woolly any organisation is about a GOR, the less persuasive any ultimate argument is going to be that it is required; (b) as Christians we ought, as a matter of principle, to be honest in our dealings.

Suitable wording for an advertisement where there is a GOR would be ‘Regulation 7(2)a of the Employment Equality (Religion or Belief) Regulations 2003 apply' and/or ‘Regulation 7(2)b of the Employment Equality (Religion or Belief) Regulations 2003 apply.'

You should let all applicants (who are to be invited to interview) have copies of any foundational statements they would be expected to accept on working for you (e.g. the school's ethos statement). If you have earlier contact with applicants (e.g. if they have to write in to request a particular application form) then these foundational statements should be sent at that time. Ideally any advertisement will also mention the need to accept/sign up to these.

A question of faith
The requirement of reasonableness ensures that decisions cannot lawfully be based on mere assumptions or social stereotyping. To the extent that it is material to the employment, an employer is entitled to ask direct questions about an individual's faith, but is not obliged to accept the answer given at face value. There should not be unduly intrusive inquiries, and I would strongly caution against any form of covert surveillance!

In the case Amicus & Others v Secretary of State for Trade and Industry (2004), Justice Richards held that ‘If the employer is not satisfied that the person meets the requirement, and if it is reasonable in all the circumstances for him to do so, the employer can decline to employ the person without having to make the same degree of inquiry as might be called for if it were necessary to gather sufficient evidence… to meet a potential complaint of unlawful discrimination.'

Drafting GORs
There are no easy answers, but where possible there should be reference to scripture. Attributes such as honesty, having a prayer life or having knowledge of the Bible are not exclusive to practising Christians, but being able to deal with unsolicited questions from pupils and parents about Christianity in general and one's own faith in particular would be (if this is expected from teaching staff).

To this extent, the more overtly Christian a school is, and the more it exists to share the Gospel of Jesus Christ, the more likely it will be that employment positions within it will have a GOR that is demonstrably Christian.

Shibboleths
Where a GOR requiring a Christian has been identified, you need to clarify what this means. What aspects of a person's life would the school consider as evidence of the Christian faith required? What are the shibboleths (see Judges 12:6) which allow us to discern that a job applicant is really a fellow believer? e.g. fidelity within marriage/celibacy without; regular church attendance; sound biblical knowledge; sound prayer life; community involvement.

There is also a risk the Courts will put all ‘Christians' into one group – i.e. ‘If you are recruiting a Christian and this person says they are a Christian and they believe pretty much all of the same things you do what is the problem?' Would your school accept as a Christian all those who would describe themselves as Christians? Would particular denominations or ‘cults' be a concern and, if so, why? This difficulty increases the need for clarity within schools, their foundational and other documents (e.g. statements of belief) and any GOR.

There are many considerations and it is not possible to go into them all in a short article. However, I would be pleased to assist Christian headteachers in England who are struggling with how to proceed or who would like further information.

© Mark Jones, Ormerods, March 2005 [last updated on 31 August 2005] 

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