Justificación del nopal forrajero como opción para la reconversión

5.1 Religion or belief discrimination

There exist other significant religious exceptions to domestic religion or belief discrimination provisions, although these exist in the Schools and Standards Framework Act 1998 (SSFA)111 and independently of the EqA 2010. In particular, faith schools in England and Wales may impose religion or belief requirements when recruiting teaching staff: this means that ‘schools with a religious character ... are allowed to discriminate in favour of staff who share the religious ethos of the

107

Ibid.

108 _{TUC Report, above n. 15, p. 22.}

109 _{EHRC: Employment Statutory Code of Practice, Draft for Consultation, p. 215.}

110_Ibid. 111

school’.112

In voluntary controlled and foundation schools the religion of a candidate for the post of head teacher may be considered in the appointing process and regard may also be had to their ‘ability and fitness to preserve and develop the religious character of the school’.113

Alongside this, in the same types of schools, a fifth of teaching staff can be ‘reserved’ to give religious education that accords with the religious tenets of the school and these appointments may be ‘selected for their fitness and competence’.114

This is a particularly generous religious exception as ‘[t]he SSFA has no proportionality requirement. As a result, the ethos of the organisation, and the question of whether the requirement is really necessary, or could be achieved through less discriminatory means is not addressed’.115 Consequently, the conceptualisation of religious liberty in the context of employment in faith schools across England and Wales is much greater than it is in other parts of the employment sphere where religious exceptions operate. Remarkably, this wider conceptualisation is not extended to other parts of the United Kingdom.116 The exception for faith schools in England and Wales is even broader in relation to voluntary aided schools where religious requirements can be imposed on all staff, not merely the head teacher or ‘reserved’ teachers of religious education. Indeed, this ‘seems to go well beyond what might be lawful ... [W]ith regard to teaching subjects other than religion, it is hard to see that being of a particular religion or belief would be a genuine occupational requirement of the job. It is also difficult to see how such requirements are proportionate’.117

The inconsistency between the religious exceptions afforded for faith schools as compared to other religious organisations is stark. Such schools are subjected to far less restriction which in turn may be open to abuse.

The EqA 2010 covers educational appointments in relation to head teachers and principals of schools where there is a requirement that that person be a member of a particular religious order.118 However, it is not apparent that the Act replaces or

112 _{Vickers, above n. 35, p. 150.}

113_{SSFA, s. 60, as amended by the EIA, s. 37.} 114

SSFA, s. 58, as amended by the EIA, s. 37.

115 _{Vickers, above n. 35, p. 152.}

116 _{For the Scottish position, see above section 2.3.}

117 _{Vickers, above n. 35, p. 153.}

118

impacts upon the specific faith schools provisions addressed above for such schools in England, Scotland and Wales.

6. CONCLUSION

The exceptions which benefit religion in employment are multifarious. There exist not only genuine occupational requirements for all organisations but also specific exceptions that are targeted at organised religions. Collectively, these apply so as to permit discrimination on grounds of sex, sexual orientation and religion or belief by religious bodies: they aim to enhance religious liberty at more of an ‘institutional’ level than an individual level. They have evolved into the EqA 2010 versions that exist today, these being ‘generally similar to those found in the old law’,119

although some key variations between the old and new law have been emphasised. However, this range of exceptions is of very limited practical use in employment given the highly restricted circumstances to which they may be applied, their narrow definitional ambit and the strict ways they have been interpreted by courts and academics commentators. This may be viewed as unsurprising. However, their utility is further circumscribed by the vagueness inherent in some of the concepts and tests employed by the legislature.

It is noticeable that the exceptions to religion or belief discrimination are wider than those in sex and sexual orientation discrimination. This permits the relevant organisations greater latitude in the pursuit of selection of workers based on religion or belief. Moreover, the religious exceptions, as opposed to the general occupational requirements, ‘indicate that special treatment is being afforded to organised religions’.120

This highlights the precious nature of those religious exceptions: whilst they may be limited, they permit an ‘organic’ approach to employment whereby:

the employee is expected to participate in the mission of the organisation as a whole, and is expected to join the whole community, the whole body, in a way that transcends any narrowly defined job description. Under the organic approach as applied to religious organizations, the workplace itself constitutes a community of believers where relationships are as important, if not more so, than narrowly defined role tasks. To a degree, the religious

119 _{Sandberg, above n. 57, p. 118.}

120

workplace is church where people worship together, not just at work, but

through work.121

Esau reinforces further the special privilege of such religious exceptions by contending that they authorise so-called ‘islands of exclusivity’: organisations may run their internal affairs regarding appointment of personnel how they like. This entails ‘giving to them a zone of liberty to at least hire their own members and enforce their own lifestyle norms that are otherwise discriminatory’.122 Whilst the exceptions may be narrow, the fact they exist at all (and the corresponding benefits they bring) is still an important validation of extra-special religious liberty.

121 _{A. Esau, ‘“Islands of Exclusivity”: religious organizations and employment discrimination’ (2000)}

33 University of British Columbia Law Review 719, p. 734 (original emphases).

122

CHAPTER 5: RELIGIOUS EXCEPTIONS IN THE PROVISION