Acts of god

Religion in schools is significant in two ways: where the school itself has a religious character and the religion or belief of the staff. Brian Palmer reviews the governing regulations and assesses some recent tribunal decisions

Non-teaching staff at independent schools with a religious character and teaching and non-teaching staff at secular independent schools will be subject to legislation, which prohibits discrimination in the workplace on the grounds of a person’s religion or belief. There are special rules for independent schools with a religious character that are beyond the scope of this article.

The governing regulations came into force in December 2003 and prohibit direct and indirect discrimination, victimisation and harassment on the grounds of a person’s religion, religious belief or philosophical beliefs. Non-believers are also protected. They protect employees, job applicants, workers and some self-employed people and cover all aspects of the employment from recruitment through to termination. Former employees are also protected.

An employer is vicariously liable for acts of its employees unless it can show that it took reasonable steps to prevent the discrimination from occurring: for example, if it has equalities policies in place that are actively implemented through monitoring and training. In general, there is no defence to a claim of direct discrimination, although it is possible to justify indirect discrimination if the employer can show that its actions are a proportionate means of achieving a legitimate aim, ie it is objectively justified. However, it is lawful in limited circumstances for direct and indirect discrimination for an employer to treat people differently if there is a genuine occupational requirement (GOR) related to religion or belief. In addition to the general GOR there is also a religious organisation GOR, which applies where the organisation has an ethos based on a religion or belief, eg a denominational school.

Different character
The religious organisation GOR was considered in Sheridan v Prospects for People with Learning Disabilities, where a
tribunal held that a charity had unlawfully discriminated against one of its managers when it required him only to
employ Christians and not to promote its existing non-Christians. The tribunal held it could not rely on the GOR
because it had not carried out a job evaluation for every post and it was not proportionate to require all employees
to be Christians. This shows that it is not appropriate to have a blanket GOR.

The other issue that can arise in employment is hostility by some religions to homosexuality, which could lead to a clash of rights with those under the sexual orientation regulations. These regulations recognise this and there is provision for limited areas in which an employer can discriminate against (but not victimise or harass) an employee or job applicant on the grounds of sexual orientation where the employment is for the purposes of an organised religion.

In Azmi v Kirklees Metropolitan Borough Council, the EAT upheld the finding that an instruction to a bilingual
support worker to remove her veil while teaching was neither direct nor indirect discrimination. The instruction
did not “target the veil”. Rather, it had been issued to achieve a legitimate aim, ie to provide the best quality
of education and the requirement to remove it while teaching was a proportionate means of achieving that aim.

Other scopes
Schools should also be aware of other recent decisions on religious discrimination of general application. In Saini v
All Saints Haque Centre, the EAT confirmed that the scope of the regulations included discrimination on the grounds
of another person’s religion. Therefore, the regulations are not confined to the individual’s own religion or belief.
It has also been recently held by the EAT in Chondol v Liverpool City Council that a dismissal of a Christian social
worker for improperly foisting his religious beliefs on service users was not discriminatory. This could apply
in the context of schools if, for example, a member of staff was found to be inappropriately promoting his/her
religious beliefs to the pupils.

Claims of religious discrimination are one of the fastest-growing areas of discrimination law and schools need to
be aware of the scope of these provisions. It is more important than ever for schools to ensure that they put in place equal opportunities policies and that they enforce them to minimise the chances of ending up in a tribunal.

Brian Palmer is a partner at Charles Russell LLP. 

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