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European Commission re-opens investigation into whether UK ‘faith’ school laws break European employment laws as UK Government shifts position

Following an appeal from the British Humanist Association (BHA) the European Commission (EC) has re-opened its long-running investigation into whether UK laws about employment in ‘faith’ schools break European employment laws prohibiting religious discrimination. The BHA has welcomed the news, which is a reversal of a previous decision taken by the EC that there was no breach, after the UK Government privately shifted its position to more closely reflect that of the BHA’s.

In April 2010, the BHA complained to the European Commission arguing that an exception for UK ‘faith’ schools in the Equality Act 2010 gives them free rein to discriminate in terms of who they employ, promote, remunerate and fire as a teacher, on the basis of their religion. This goes beyond what is permitted by the European Employment Directive, which only permits such discrimination where it can be demonstrated that it is ‘a genuine, legitimate and justified occupational requirement’ (GOR) that such discrimination occurs. Examples of legitimate GORs would be a place of worship only hiring priests that share its faith, or a ‘faith’ school that teaches faith-based religious education requiring its Head of RE to share the faith of the school. But the BHA believes that allowing most ‘faith’ schools to require every single teacher to share the faith of the school goes beyond what the Directive permits. UK law also allows religious schools to give preference to teachers of a certain faith, while EU law only allows employees to either require it or not discriminate at all.

In private papers in the case the UK Government adopted a different position than it has publicly. It declared that religious schools can only discriminate where there is a GOR. This marked a significant departure from all public statements issued by the Government, for example its advice to schools on the Equality Act, which had said that ‘faith’ schools do in fact have wider freedoms to discriminate. This was one of the factors that led to the case being closed, along with the Commission claiming it had no examples of individual cases. However, after the BHA pointed out that this is not true, and provided more individual examples (some of which it is publishing today), the Commission agreed to re-open the case.

BHA Chief Executive Andrew Copson commented, ‘We welcome the decision by the European Commission to resume its investigation into whether UK “faith” school laws break European employment laws, and the fact that the UK Government has privately shifted its position on this matter to more closely reflect ours. But the fact remains that religious schools in the UK believe they have unique freedom to discriminate against any teacher on the basis of religion, whether this is the maths teacher, PE teacher, or science teacher, as on the face of it, this is what the law provides. There is no justifiable basis for this freedom. Such discrimination is hugely problematic for teachers who are not Christian, who can find it harder to find work and be promoted as a result, and they also frequently see children deprived of the best teachers who are wrongly passed over on account of their religion or belief. This unique exception from equalities legislation has to end.’

History of the case

In July 2012, the EC decided to take up the BHA’s complaint as a formal investigation, writing 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].’ In March 2013 it submitted formal questions to the UK Government.

The Government responded in June, arguing that there was no breach because if a court or tribunal is forced to consider the matter, it would have to read UK law in the narrower sense required by the European Directive. This marked a significant departure from all public statements issued by the Government, for example its advice to schools on the Equality Act, which had said that ‘faith’ schools do in fact have wider freedoms to discriminate. It also seemed to be an inadequate response, as previous EC decisions suggests that only clear and precise implementation of Directives is acceptable. And it was contradicted by a tribunal case where in fact the tribunal had failed to act in the way that the Government predicted.

However, in March 2014 the EC decided to close the case. It notified the BHA of this decision in October, and only provided its reasoning in January. The reasoning turned out to be that ‘These points are based on complaints which concern the legislation itself and not individual cases. Since we have no evidence of incorrect application of the laws at stake, the clarifications you have provided are considered sufficient.’ The BHA responded to this by pointing out that individual cases had in fact been cited in correspondence, and provided the EC with several more. After pressure from the BHA the EC has now decided to keep the case open so that it could investigate the new material.

17 examples of TES job adverts where preference is being given where a GOR cannot be claimed

  1. https://www.tes.co.uk/Upload/Attachments/TES/2778545/maths%20person%20spec.doc
  2. https://www.tes.co.uk/Upload/Attachments/TES/041DCF0001/Head%20of%20English%20-%20Person%20Specification%20April%202014.pdf
  3. https://www.tes.co.uk/Upload/Attachments/TES/030CBC0001/Person%20Spec%20HOD%20%20-%20ICT%20.docx
  4. https://www.tes.co.uk/Upload/Attachments/TES/03D76G0002/Equal%20Opps%20HT.doc.docx
  1. https://www.tes.co.uk/Upload/Attachments/TES/034GAC0005/Job%20Spec%20for%20Class%20Teacher.doc
  2. https://www.tes.co.uk/Upload/Attachments/TES/0314660001/Person%20Spec.%202.doc
  3. https://www.tes.co.uk/Upload/Attachments/TES/2889626/1Teacher%20Personal%20Specification.doc
  4. https://www.tes.co.uk/Upload/Attachments/TES/03EFD20001/Person%20Spec%20Subject%20Leader.docx
  5. https://www.tes.co.uk/Upload/Attachments/TES/04A9C30001/Safer%20Recruitment%20Policy%20Sept%202014.pdf
  6. https://www.tes.co.uk/Upload/Attachments/TES/3003329/9.%20Equal%20Opportunities%20in%20Employment%20Policy.pdf
  7. https://www.tes.co.uk/Upload/Attachments/TES/045GED0001/School%20Description.pdf
  8. https://www.tes.co.uk/Upload/Attachments/TES/03313C0001/Application%20pack%20SCH%20513.pdf
  9. https://www.tes.co.uk/Upload/Attachments/TES/03B2E50001/Appointment%20Information.docx
  10. https://www.tes.co.uk/Upload/Attachments/TES/02D8360001/All%20Saints%20School%20Information.pdf
  11. https://www.tes.co.uk/Upload/Attachments/TES/3112029/WAT%20Application%20Form%20English%20Teacher%20Oct%2012.docx
  12. https://www.tes.co.uk/Upload/Attachments/TES/048CH10001/Person%20Specification%20-%20Subject%20Co-ordinator%20(Subject%20leader).docx
  13. https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=26&cad=rja&uact=8&ved=0CDwQFjAFOBQ&url=http%3A%2F%2Fwww.tes.co.uk%2FUpload%2FAttachments%2FTES%2F032HCB0002%2FHEAD%2520OF%2520MATHS%2520and%2520NUMERACY%2520FACULTY.doc&ei=JXbGVLOsKMP_UozsguAM&usg=AFQjCNFfCPytMYEstSMuPs8OLUVhF0pCbQ

Notes

For further comment or information, please contact Andrew Copson on 07534 248596.

Read coverage of this issue in today’s TES: https://www.tes.co.uk/article.aspx?storycode=11006453

Read the BHA’s complaint from April 2010: http://www.humanists.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: http://www.humanists.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://humanists.uk/wp-content/uploads/BHA-comments-on-UK-Government-observations-final.pdf

Read October’s letter from the European Commission proposing to close the case: https://humanists.uk/wp-content/uploads/EU-Pilot-3800-12-JUST.pdf

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

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