sexual orientation, religious beliefs, religious discrimination

When can employers specify religion or sexual orientation?

The genuine occupational requirement defence to a discrimination claim allows schools to set conditions on whom they employ. Tamara Ludlow explains

Employment equality regulations on religion or belief and sexual orientation became law in 2003. At first there were few cases brought under the new law, but the last 18 months have seen a series of cases, which allows us to examine the scope of the 2003 regulations through judicial decisions.

Last December, we looked in some detail at the case of Azmi. This concerned a teaching assistant who claimed her employer's prohibition on wearing the veil at work was in breach of the religion or belief regulations (Education Law Update issue 66).

More recently the cases of McNab and Reaney, which this article will discuss, have provided us with clarification on what conditions employers can place on the personal lives of those they employ.

TEACHING IN FAITH SCHOOLS
Specific rules govern teaching roles in faith schools. Employment as a teacher in a faith school in England and Wales is governed by provisions in the School Standards and Framework Act 1998:

The law allows preference to be given, in connection with the appointment, promotion or remuneration of teachers at voluntary aided schools and independent schools, to those whose opinions accord with the school's religious doctrine, who attend worship in accordance with that doctrine, or are willing to teach religious education in accordance with that doctrine.
In the case of foundation or voluntary controlled schools the position is the same but the number of teachers so appointed ('reserved teachers') must be limited to one-fifth of the teaching staff.

Despite these special rules employers will have to justify any potentially discriminatory conduct using the defences available to them in the religion or belief regulations (or other legislation as appropriate).

ANTI-Discrimination law
The default position is that it is illegal for an employer to discriminate, directly or indirectly, on one of the prohibited grounds, in the arrangements it makes before, during and after employment. There are limited exceptions to the anti-discrimination provisions that allow for lawful discrimination on specific grounds namely, where there is a genuine occupational requirement (GOR) to do so. In the education sector it is faith schools that will most need to rely on this defence.

LEGAL DEFENCES
An employer accused of direct or indirect discrimination in making a decision to promote, transfer, dismiss or train can, for each of the prohibited grounds of discrimination, rely on genuine occupational requirement (GOR) as a defence.

But the GOR defence does not permit discrimination in the terms of employment, or in relation to any other detriment, such as demotion. GOR cannot be used to defend a victimisation or harassment claim.

RELIGION OR BELIEF REGULATIONS
The religion or belief regulations, set out two types of GOR:
1. the general GOR
2. the religious organisations GOR

WHEN DOES GOR DEFENCE APPLY?

General GOR
An employer can rely on a general GOR provided it satisfies the narrow criteria set out in the regulations, namely: 'where, having regard to the nature of the employment or the context in which it is carried out:
a) being of a particular religion or belief is a genuine and determining occupational requirement
b) it is proportionate to apply that requirement in the particular case; and
c) either the person to whom that requirement is applied does not meet it, or the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.'

The GOR applies to the position and not to the individual.

Religious organisations GOR
Organisations that have an ethos based on a religion or belief (such as denominational schools) can use this GOR as a defence to discrimination where: 'having regard to that ethos and to the nature of the employment or the context in which it is carried out:
a) being of a particular religion or belief is a genuine occupational requirement for the job
b) it is proportionate to apply that requirement in the particular case; and
c) either i) the person to whom that requirement is applied does not meet it, or ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.'

BURDEN OF PROOF
The employer must prove that the GOR defence applies. For the general GOR the tribunal must objectively assess the qualities required of a particular individual to carry out a role, rather than rely on an employer's assessment.

It is for the employer to show that its organisation has 'an ethos based on religion or belief'. The employment appeal tribunal has interpreted narrowly the scope of the religious organisations GOR.

McNab made it clear that the religious organisations GOR cannot apply to employment in a faith school where the employer is a local authority, because the local authority itself cannot be said to have a religious ethos.

SCOPE OF THE GOR DEFENCES
The religious organisations GOR is slightly wider in scope than the general GOR because the employer is not required to show that religion or belief is a 'determining' (i.e. decisive) factor in selection for the relevant post.

But even under the wider GOR defence, the employer must still show that the religion or belief is a requirement for the job and not just one of many relevant factors.

In Scotland, the provisions of the Education (Scotland) Act 1980, allow for teaching appointments in faith schools to be approved as regards the appointee's religious belief and character by representatives of the church or denominational body in whose interests the school has been conducted.

Glasgow City Council v McNab, 2007
The employment appeal tribunal upheld an earlier tribunal decision that an atheist teacher, David McNab, employed by a Catholic school maintained by Glasgow City Council, had suffered direct discrimination under the Religion or Belief Regulations 2003 when he was refused an interview for the post of principal teacher of pastoral care.

The EAT said that the tribunal was right to conclude that the post was not one for which the Roman Catholic Church required a Catholic teacher (as set out in a 1991 agreement between the Council and the Church). The council was wrong, therefore, to assume that the Church would not have approved the appointment of Mr McNab.

The EAT also upheld the tribunal's finding that there was no general GOR for the principal teacher of pastoral care in a Catholic school, to be a Catholic. The EAT held that a local authority has no religious ethos and so can not use the religious organisations GOR, even for employment in religious schools.

SEXUAL ORIENTATION REGULATIONS
Religion and belief and sexual orientation rules overlap. The sexual orientation regulations allow organised religions opposed to employing people of a certain sexual orientation to rely on a GOR defence to claims of discrimination on grounds of sexual orientation in relation to recruitment, training, promotion, transfer and dismissal.

This defence will not generally apply to a school with a religious ethos because there the employment is for providing education; the employees do not work for an organised religion. Even when the employment is for an organised religion, the employer must act reasonably when reaching a decision that may have discriminatory effect (see Reaney below).

Reaney v Hereford Diocesan Board of Finance
John Reaney applied for the position of youth officer for the Diocese of Hereford. He declared his homosexuality on his application form and during interview answered questions about reconciling his sexuality and faith.

The tribunal held that such questioning was not unreasonable and did not amount to harassment, stating that where a homosexual was committed to working for the Church of England, s/he should expect to discuss (as Mr Reaney had) the perceptions of homosexuality within the Church during a job interview.
The Bishop of Hereford decided not to offer Mr Reaney the job, even though he was the preferred candidate after competitive interview. The tribunal found that the failure to offer him the job was an act of direct sexual orientation discrimination.

The youth officer job had been for the purposes of an organised religion. The requirement that the applicant declare that he had made a positive choice of celibacy or that he would abstain from sexual behaviour was for compliance with the doctrines of the Church of England and to avoid conflict with the strongly held religious convictions of a significant number of the religion's followers.

But the tribunal held that the Bishop of Hereford had not been reasonable in refusing employment on the basis that the applicant did not meet that requirement. Therefore the genuine occupational requirement defence was not available in this case.

THE EFFECT ON FAITH SCHOOLS
The decisions in McNab and Reaney form part of a wider debate on the extent to which faith schools should benefit from state funding. The GOR defences have been criticised as unacceptable carve-outs from
anti-discrimination legislation, which pander to outdated religious beliefs.

In March 2007 and following the McNab decision, the Association of Teachers and Lecturers consulted with its members and concluded that state funding should not be available to educational establishments that discriminated against staff (and indeed pupils).

It has urged that there be no extension of rights given to faith schools to refuse to employ staff on the basis of their religious belief.

THE FUTURE
Despite the criticisms levelled at the legislation, it appears unlikely that it will be amended to remove the GOR defences in the near future. It is clear, however, that the tribunals will take a restrictive approach in interpreting the scope of the defences, and employers will have to be prepared to provide thorough justifications for their decisions and be able to show that the approach they have taken has been reasonable and proportionate.

FIND OUT MORE
Glasgow City Council v David McNab: UKEATS/0037/06/MT, 17 January 2007
John Reaney v Hereford Diocesan Board of Finance: ET Case No. 1602844/2006
The Employment Equality (Religion or Belief) Regulations 2003 [SI 2003/1660]; (Sexual Orientation) Regulations 2003 [SI 2003/1661] are at www.opsi.gov.uk
Advisory, Conciliation and Arbitration Service, for information on law and employment relations

Tamara Ludlow is a solicitor in the employment department of Finers Stephens Innocent

This article first appeared in Education Law Update - Oct 2007

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