Brexit in some form may be coming; but in the meantime will religious schools have to change the way they recruit staff following a recent European Court of Justice (ECJ) case? The employment of teachers is governed by the School Standards and Framework Act 1998 (SSFA) and the Equality Act 2010 (EA). The SSFA applies differently depending upon whether a religious school is voluntary controlled (VC), voluntary aided (VA) or a foundation school which has a religious character and it applies to academies and independent schools.

The SSFA gives the widest powers to independent faith schools and VA schools in relation to the employment of teachers to people of that faith. VC and foundation schools with a religious character may only exercise such powers in relation to their head teacher and ‘reserved teachers’: that is, up to 1/5 of their teachers who have been selected for their fitness and competence to give religious education in accordance with the school’s trust deed.  The provisions for academies mirror those for VC and foundation schools.

However, the EA provides an exception against discrimination claims in other cases as well, including those against schools that have an ethos based on religion or belief, which is a wider category than schools designated as having a religious character. This ‘occupational requirement’ exception is available if, broadly, a school can prove that being of a particular religion or belief is an occupational requirement, and that such requirement is a proportionate means of achieving a legitimate aim.

This EA exception is based upon an EU Directive – the Equal Treatment Framework Directive – which the courts are obliged to apply in their interpretation of legislation. The recent ECJ case provided the courts with guidance as to how to judge employers’ claims that there is a genuine occupational requirement. In this case, there was a claim for discrimination against a German charity trust, connected to a church, that prescribed that faith as a requirement of employment. The court ruled that any difference in treatment on the grounds of religion or belief will only be permitted where it constitutes a genuine, legitimate and justified occupational requirement having regard to the organisation’s ethos, and must be subject to court scrutiny.

While the SSFA is clear, it should be interpreted in the light of this ECJ decision. Schools with a religious character would be best advised to think about the genuine nature of their employment criteria and whether such criteria are proportionate to the aims and ethos of the school. This would be particularly prudent given that the Equality and Human Rights Commission have published a report which specifically states that the provisions of the SSFA “go beyond what is lawful in the EU Employment Equality Directive”. The risk of an unlawful discrimination claim is high and you must be prepared to justify that this requirement is reasonable and proportionate. We recommend considering whether it is necessary to impose such a criterion and if your organisation deems that this is a necessary requirement of the role to obtain legal advice.