The religious occupational requirement exception is an area of law that derives from the European Union. Article 4(2) of the Equal Treatment Framework Directive sets out the limited circumstances where national legislation of a member state may permit a difference in treatment where an employer considers a particular religion or belief to be an occupational requirement of a job.
A recently decided case in the European Court of Justice saw a claim for discrimination against a German trust charity connected to the church that provided religion to be a requirement of the job Egenberger v Evangelisches Werk fur Diakonie und Entwicklung eV (C-414/16). In the judgment Advocate General Tanchev provided important guidance on when a religious occupational requirement exception can be used.
He states that a 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.
In German law the German Protestant Church has autonomy and self-determination and the ECJ found that the decision to use religion as an occupational requirement should be subject to judicial review to preserve the right not to be discriminated against. The ECJ further outlined the test to be considered by the Courts in such as case which is “whether the occupational requirement is necessary and objectively dictated, having regard to the ethos of the organisation, the nature of the activity and the circumstances in which it is carried out.”
In UK law there is an Occupational Requirement exception available against discrimination where an employer has an ethos based on religion or belief (Paragraph 3, Schedule 9 EqA). This is available if they can prove that:
- Being of a particular religion or belief is an occupational requirement;
- The application of the requirement is a proportionate means of achieving a legitimate aim; and
- The claimant does not meet the requirement (or the employer has reasonable grounds for not being satisfied that the claimant meets it).
Any restriction must be proportionate so it would be advisable that any restrictions affect the head of the organisation or for roles that have a requirement of an in-depth understanding of the religion. However, administrative posts or jobs that do not require this in-depth knowledge and should be open to all people regardless of their religion or belief or that could be seen as discriminatory.
Courts will carefully scrutinise claims carefully in relation to genuine occupational requirements. There are two cases outlining examples of where a genuine occupational requirement was accepted and rejected. The first case saw a successful claim for unlawful discrimination as an atheist teacher was prevented from being interviewed for a Personal and Social Education role in a Roman Catholic school. This was not considered pastoral care and the fact that appointment had to be approved by the Roman Catholic Church did not render a genuine occupational requirement.
The second case saw a litigant argue that a requirement for a ‘committed Communicant Christian’ applicant was discriminatory with regard to a head-teacher post. The court found the wording was indirectly discriminatory and was therefore open to justification on the basis of a genuine occupational requirement. This criterion was imposed for maintaining the ethos of the school and was found to be reasonable and proportionate in all the circumstances.
It is imperative that caution is taken if your organisation is considering imposing criteria relating to religion as part of a recruitment process for a job role. 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 criteria and if your organisation deems that this is a necessary requirement of the role to obtain legal advice to outline all of the risks involved.