How Far Faith Schools Can Go in Protecting their Religious Ethos?

Faith schools can be independent or state maintained, but generally they should be registered with the Department for Education as having a religious character. The law relating to these schools differs from non – faith schools and differs again depending upon whether the school is independent or maintained and indeed depending upon the type of maintained school. The law in this area is complex but highly topical. With reference to the key pieces of legislation this note will consider a) what do faith schools do to protect their religious ethos;and b) ‘how far can they go’ in protecting their ethos.

Schools with a religious ethos seem to feature heavily in the press. Recently we have been hearing about ‘Trojan Horse’ in Birmingham, the DfE consultation on religious studies, high profile downgrading by Ofsted of several faith schools and the amendments to the moral, social and cultural development of pupils, which this note considers later.

Churches and religious charities, historically Christian, but more recently other faiths, have played a significant role in founding schools and in education. The proportion of schools with a religious character at least in the state system is about one-third.   In some schools the religious character will be more apparent than in others.

Turning to the question posed above; arguably faith schools can go quite far in protecting their religious ethos, especially independent schools with a religious character.

Firstly, the overarching legal protection in Article 2 of Protocol 1 of the European Convention on Human Rights is in these terms:   “No person shall be denied the right to education. ….the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions…” This includes private teaching. There is a bulk of European cases on the subject but it is established that parents have the right to educate their children in accordance with their own religious belief.

Secondly, the Equality Act 2010 applies to all schools, independent and maintained. It is unlawful for a school to discriminate against or victimise a pupil by treating them less favourably because of a protected characteristic, including their religion or belief or lack thereof.   There are general exceptions to this for schools registered as having a religious ethos contained in paragraph 5 of Schedule 11.

1. Dealing with some specific matters that practically affect schools’ religious ethos:
2. Recruitment: The Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003 effectively permit schools to give preference in connection with appointment, remuneration or promotion of teachers at the school to persons: whose religious opinions are in accordance with the tenets of the religion of the school; who attend religious worship in accordance with those tenets; or who give religious education in accordance with those tenets. In addition, the governing body may dismiss any teacher for conduct which is incompatible with the tenets of the school’s religious denomination. The effect is that an independent school designated with a religious ethos should not be liable under discrimination law for giving preference to teachers of a certain faith, which would be an act of discrimination in other circumstances. There are equivalent provisions for voluntary aided schools.

Extreme caution should be exercised however. Proprietors may exercise a ‘preference’, but should not for example permit a school to refuse to employ someone of a different faith if for example there is no one else from the same faith. There is little in the way of case law and employment tribunals vary greatly when scrutinising facts and applying the law.   Equally, caution should be taken with disciplinary measures other than dismissal as the legislation does not appear to provide protection for schools in that case. For example seeking to dismiss a teacher for acting in a way that is incompatible with the school’s religious ethos may not be caught by discrimination law (legal advice should be taken in any case) but potentially there is no protection for sanctions less than dismissal. The same provisions apply to reserved teaching posts (namely those teachers responsible for teaching religious studies) in voluntary controlled and foundation schools with a religious character. The total number of reserved teachers in those schools must not exceed one – fifth of the teaching staff including the head. In respect of all other teaching posts, the Equality Act 2010 must be followed. If the trustees of a voluntary aided school are also trustees of a Roman Catholic Religious Order, the governing body must notify the Superior of the Order and interview any members of the Order that are proposed by the Superior and appoint them unless there is good reason for not doing so. Religious criteria should not be applied to non-teaching posts unless there is a genuine occupational requirement.

2 Legal matters relating to admissions and faith are generally only relevant for oversubscribed maintained schools. Independent schools registered with a religious character may give priority in admissions to members of their own religion and are not bound by the Admissions Code. For maintained schools and academies the Admissions Code provides that they can only allocate places by reference to faith where there are oversubscribed.

3 Certain other aspects of school life are also outside discrimination law:

3.1 Curriculum: s 89 (2) Equality Act 2010 provides that “nothing in this Chapter applies to anything done in connection with the content of the curriculum…”. The content of the curriculum is expressly taken out of equality law unless it is delivered in a way that causes harassment or subjects pupils to discrimination. For example, a pupil would have no jurisdiction to bring an action about the teaching of evolution in science lessons; but a teacher making derogatory generalisations about those whose who believe in creationism because of their religious belief risks discrimination.

3.2 Acts of Worship: There is a general exception which allows all schools to hold acts of worship or other forms of collective religious observance. Acts of worship are mandatory for maintained schools. A daily act of collective worship, which should be of a broadly Christian nature, is not covered by the religion or belief provisions. Schools will not be acting unlawfully if they do not provide an equivalent act of worship for other faiths although they are free to celebrate religious festivals. There is no requirement to provide prayer rooms though it could well be a sensible thing to do.

4 Governors may be able to contribute to the religious ethos of a school. This could be especially relevant in schools where the headmaster and/or teaching staff were traditionally religious (ordained Priests for example) but who may be finding a shortage of such teachers now.

5 On a final practical point, governing bodies and schools should be careful with rules dealing with uniform and personal appearance. There are no specific references for schools relating to appearance and uniform under the Equality Act 2010 but requiring pupils to dress in a way they consider conflicts with their religious belief could be cause for a discrimination claim.

Amendments to the Education (Independent School Standards) (England) Regulations 2010 and guidance notes.

1 The amendments to the Independent Schools Standards regulations followed the ‘Trojan Horse’ controversy in Birmingham earlier this year. The primary aim during the consultation was said to be ensuring that extremism does not form part of teaching.

2 The new rules update part 2 paragraph 5, (the provisions for spiritual, moral, social and cultural development of pupils) and now require schools to “actively promote British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs”   as well as “actively” promoting the principles set out in sub clause (b) which seem broadly the same as before though now specifically refer to the Equality Act 2010. The guidance from the DfE is now available here (for independent schools):

Improving the spiritual, moral, social and cultural (SMSC) development of pupils: supplementary information by Department for Education published Nov 2014

3 The guidance should be read by schools, but particularly relevant for faith schools is this paragraph: “It is not necessary for schools or individuals to ‘promote’ teachings, beliefs or opinions that conflict with their own, but nor is it acceptable for schools to promote discrimination against people or groups on the basis of their belief, opinion or background.” The guidance is supplemental to and should be read alongside the November 2013 guidance, however it specifically replaces certain parts of the 2013 guidance and interestingly for faith schools now omits this point: using “teaching resources from a wide variety of sources to help pupils understand a range of faiths, and beliefs such as atheism and humanism”.

4 One interpretation of the amendments and particularly the wording “actively promote” is that they may cause, for the first time, litigation concerning what is taught in class as some teachers may have concern or difficulty in balancing the need to promote of “tolerance of those with different faiths” with promoting the different faith itself. There may also be tension arising out of the ambiguity of the proposals, there being no definition of “actively promote” or “British values“. However, most schools will likely cope with the amendments and already do so.

Maria Strauss (Farrer &Co)