The Teacher Exception Provision
There is currently an exception under FETO 1998 which allows schools to lawfully discriminate on the grounds of religious belief, in the appointment of teachers in schools. This exception applies both to the initial recruitment of teachers and to promotion. (See Debast and Flynn v Dr Malcolmson, Laurelhill Community College and SEELB - pdf)
Legal Case: decision of the Fair Employment Tribunal
One other important aspect of the exception is that, unlike other employers with more than 10 employees, schools are not required to monitor the community background of their teaching staff. In addition, they are not required to carry out reviews of their teaching workforces, or of the employment policies and practices affecting teaching staff, or consider whether they are providing fair participation to members of the Protestant and Roman Catholic communities, in relation to the employment of teachers.
Julie Brudell complained of religious discrimination following her selection for redundancy by the Board of Governors at Ballykelly Primary School in 2009.
Ballykelly Primary School is a controlled school with pupils from both Protestant and Catholic communities and at the time of the redundancy decision the majority of the pupils was Catholic.
Five of the 15 teachers in the school were Catholic and none of these was among the four selected for redundancy. The tribunal, in reviewing the evidence given, stated “it is clear that there was an awareness that the Roman Catholic pupils now outnumbered the Protestant ones, that the school had lost so many children already, and ‘would lose even more depending on who was made redundant’.”
The tribunal upheld Julie’s complaint and awarded her £8,250.
Equality Commission investigation
In 2004, the Equality Commission carried out an investigation into the exception of teachers from FETO 1998 (pdf)
The investigation highlighted the following concerns which led to original inclusion of the exception which said:
“Roman Catholic educational interests were concerned that, without an exception for teachers, the Act could eventually lead to a system of non-denominational education, with a resulting loss of Catholic ethos. On the other hand, Protestant educational interests were concerned that Protestant teachers would be placed in an unduly unfavourable position. They believed that the state education system would come within the scope of the legislation, while the maintained schools, which are in the main Catholic, would not, as they could conceivably claim that religion was a bona fide occupational qualification. In other words, Roman Catholics would have a right to equality of opportunity in state schools but Protestants would not have the right to equality of opportunity in Catholic schools.”
Following the investigation, the Commission recommended that the teachers’ exception be narrowed to restrict the exception to teachers in mainstream primary schools.
It formed this opinion in light of its consideration that the genuine occupational exception permitted under FETO 1998 would exempt many more posts in the maintained sector that the controlled sector and accordingly reduce the relative opportunity for Protestant teachers. The genuine occupational exception allows employers to discriminate when recruiting on the grounds of religious belief, where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief.
In the investigation report, the Commission made it clear that it considered that within integrated schools, where it is necessary to ensure a workforce which includes Protestants, Roman Catholics and those of other and no religion, it is likely that the need for a staff member of a particular religion will meet the test of genuine occupational requirement. Similarly, within Roman Catholic maintained schools, certain posts, especially within the primary sector, may meet the genuine occupational requirement test. However, it was also of the view that it was no longer acceptable to exclude the entire teaching workforce from the fair employment legislative provisions covering all other occupations in Northern Ireland. It recommended that teachers should be included in monitoring and review requirements, as are all other occupations, as this would ensure that the benefits of annual data collection and the rigour of regular review are brought to the teaching workforce as all other employment groups.
However, the Commission concluded that it would not improve the equality of opportunity for Protestant teachers to remove the exception entirely, given the present situation where the majority of schools divide into distinctly Catholic schools and other non-denominational schools, and that the exception should continue for teachers in mainstream primary schools for the present time.
Our view is that all teachers should be able to enjoy the same legislative protection as other workers, and the exemption should be abolished at secondary level, as previously recommended; with early consideration given to the question of urging the removal of the exemption at all levels.