Fair recruitment processes

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Can schools discriminate when recruiting teaching staff? Legal expert Kerren Daly offers her advice.

Recruitment can be a thorny issue, especially when the school is one with a particular focus and it requires specific skills or characteristics for its candidate to possess. This can be particularly important for faith schools, which may require their teaching and support staff to be of a specific religion or gender. Therefore, when it comes to recruitment, can schools be selective about who they recruit?

The answer is, it depends. There are certain situations where a school is able to recruit a member of staff based on their gender or religion. The Equality Act 2010 sets out certain exceptions that headteachers and governors can rely on in these circumstances. 

Here I look at how the law relating to gender and/or religious specific recruitment practices can be used to a school’s advantage and what pitfalls to avoid.

Genuine Occupational Requirements

Under the Equality Act 2010, a school will generally be acting unlawfully if it discriminates against a job applicant by treating them less favourably during the recruitment process on the grounds of their “sex, race, disability, religion or belief, sexual orientation or age (transsexual person, married or a civil partner)”. 

However, a school is permitted to discriminate under an exception in the Equality Act of “Genuine Occupational Requirement” (GOR). Therefore, if a faith school would like to recruit a teacher who is of the same religion the school must show, with regard to the nature or context of the work, that:

  • Being of a particular gender (or other protected characteristic) is a GOR.

  • The application of the GOR is a proportionate means of achieving a legitimate aim.

  • The individual does not meet the requirements.

Some examples of the GOR in practice are: 

  • The need for authenticity or realism might require someone of a particular race, sex or age for acting roles (for example, a Black man to play the part of Othello) or modelling jobs.

  • An organisation for deaf people might legitimately employ a deaf person who uses British Sign Language (BSL) to work as a counsellor to other deaf people whose preferred language is BSL.

  • Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.

Religious and gender specific recruitment

A school can apply a GOR stipulating that an employee be of a particular gender or religion in order to comply with the doctrines of a religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

However, to rely on the exception, a school must be able to show that their ethos is based on a religion or belief, for example, by referring to their founding constitution. In this context, an “ethos” is the important character or spirit of that religion or belief.

In Glasgow City Council v McNab, the Employment Appeal Tribunal upheld a tribunal’s decision that an atheist teacher employed by a Catholic school maintained by the council had suffered direct discrimination when he was refused an interview for the post of principal teacher of pastoral care.

The Employment Appeal Tribunal held that there was no GOR. In particular, it held that a local authority has no religious ethos and therefore cannot take advantage of the GOR, even in respect of employment in a religious school.

Practical recruitment guidance

This case highlights the limits imposed on the ability of faith schools to recruit on the basis of religion and belief by relying on the GOR. The question here is whether employment in a local education authority school can be subject to the religious ethos argument. 

Therefore, it will depend on whether the staff are directly employed by the local education authority (such as voluntary-controlled schools in England) or by a governing body (for example, foundation and voluntary-aided schools in England). It seems that only in the latter case could the “religious ethos” GOR even be argued.

Relying on a GOR therefore has its own risks and although the law may provide an exception in specific situations, with schools the difficulty can arise due to who employs the teaching staff. 

An additional issue is that when recruiting for a role where you need to rely on a GOR, any GOR will need to be set out clearly in any job advert. However, this may lead to unwarranted criticism, negative publicity or claims of discrimination. 

Therefore, although the exception exists, schools should only seek to rely on it if it is absolutely necessary.

  • Kerren Daly is head of the education sector at national business law firm DWF.

   


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