Publication - FOI/EIR release

Diocese approved roles in Roman Catholic Schools: FOI release

Published: 18 October 2019
Directorate: Learning Directorate
Topic: Education, Public sector
FOI reference: FOI/201900004423
Date received: 18 September 2019
Date responded: 16 October 2019

Information request and response under the Freedom of Information (Scotland) Act 2002

Information requested

In 2016 it was reported that the EHRC had called for a review of the current situation whereby applicants to roles in Roman Catholic schools must be approved by the relevant diocese.
(https://www.scottishlegal.com/article/equalities-experts-call-for-review-of-catholic-schools-right-to-vet-applicants-for-religious-suitability)
Please confirm:
1.Has this review been carried out?
2.If not, what is the reason for this?
3.If so, what was the outcome of this review?
Please also release:
a.All documentation regarding any review
b.All communication regarding any review
The timeframe for this request is 1/11/2016 – present

Response

I enclose a copy of all of the information you requested.
Your request refers to a report entitled, “Religion or Belief: is the law working?” published by the Equalities and Human Rights Commission (EHRC) in December 2016. This report recommended that the Scottish Government review “section 21 (2A) of the Education (Scotland) Act [1980] to ensure their
compatibility with the EU Employment Equality Directive.“ This legislation governs the process of approval of the appointment of teachers by the relevant denominational body in denominational schools.
While the Scottish Government has the highest regard for the views of bodies such as the EHRC, in this case the Scottish Government is content that the current position is in line with the EU Employment Equality Directive. Therefore, no review has taken place since the EHRC published its report in 2016.
The Scottish Government’s view is that the provisions in the Education (Scotland) Act 1980 are necessary to enable denominational schools to maintain and develop their religious character. It is for each education authority and the relevant church or denominational body to ensure that they comply with their legal obligations.
I have attached at Annex A the information the Scottish Government holds in relation to the publication of the EHRC’s 2016 report. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption(s) under
section 38(1)(b) (personal information).

ANNEX A
From: Strachan Y (Yvonne)
Sent: 25 November 2016 15:19
To: [Redacted - s.38(1)(b) (personal information); [Redacted - s.38(1)(b) (personal information)])
Cc: [Redacted - s.38(1)(b) (personal information)]; [Redacted - s.38(1)(b) (personal information)]
Subject: Urgent EHRC Report on Religion - possible issue on 1980 Education Act
Hi [Redacted - s.38(1)(b) (personal information)]
We were given your names as contacts on the issue of religion and denominational schools. I had hoped to speak to you as it might have been easier but haven’t been able to contact you.
The EHRC (UK) are due to publish three products on Monday as result of some detailed work they have undertaken on religion and belief. The first of the products is a legal effectiveness review – i.e. is the law working.
We understand from [Redacted - s.38(1)(b) (personal information)] at the EHRC in Scotland that there is contained within this product (which is quite technical and dense) a suggestion that SG should review its legislation (ref 1980 Education Act) on its compatibility with EU employment directive – this seems to link to the findings of the tribunal case McCabe v Glasgow City Council which was upheld at EAT. My understanding is that this case was about approvals to teach in a Catholic school.
I apologise that I am not familiar with this legislation or the detail of the issue so cannot provide further information.However [Redacted - s.38(1)(b) (personal information)] at the EHRC has indicated that he would be happy to speak to someone from Education today on what is being said in the report and the Commission’s handling of it..
The EHRC are not intending to highlight this reference – you will see from the statement that has been released to the Daily Mail which I will forward to you that it is very general.However, it is possible that someone who reads the document might pick up this detail about Scotland and want to make something of it.
[Redacted - s.38(1)(b) (personal information)], Communities Comms sat in on our conversation with the EHRC this morning but as this relates to Education, you might want bring your own Comms people into the loop.
[Redacted - s.38(1)(b) (personal information)] mobile number is: [Redacted - s.38(1)(b) (personal information)]
Regards
Yvonne
Yvonne Strachan | Head of Equality, Human Rights and Third Sector Division |
Deputy Director:Scottish Government
Tel: 0131 244 5197 | E:Yvonne.Strachan@scotland.gov.scot

From: [Redacted - s.38(1)(b) (personal information)]
Sent: 25 November 2016 15:39
To: Strachan Y (Yvonne); [Redacted - s.38(1)(b) (personal information)]; [Redacted - s.38(1)(b)
(personal information)]
Cc: [Redacted - s.38(1)(b) (personal information)]; [Redacted - s.38(1)(b) (personal information)]
Subject: RE: Urgent EHRC Report on Religion - possible issue on 1980 Education Act
Yvonne
Thank you for keeping us sighted – that’s helpful.
We (i.e. Clare Hicks & I) think [Redacted - s.38(1)(b) (personal information)] is best placed to answer any detailed queries on this (far better than I ever could!) & although she’ out of the office today, she’s picking up emails. She’ll be able to help if required.
On Comms side copying [Redacted - s.38(1)(b) (personal information)] in you suggest –[Redacted -s.38(1)(b) (personal information)] : no action required just for awareness at this stage.
Thanks too for your othernote – copy attached for [Redacted - s.38(1)(b) (personal information)]benefit
[Redacted - s.38(1)(b) (personal information)]
[Redacted - s.38(1)(b) (personal information)]
Empowering Schools Unit | People and Infrastructure | Learning Directorate | 2A South | Victoria Quay
EH6 6QQ
[Redacted - s.38(1)(b) (personal information)]| [Redacted - s.38(1)(b) (personal information)]|
[Redacted - s.38(1)(b) (personal information)]

From: Strachan Y (Yvonne)
Sent: 06 December 2016 16:06
To: [Redacted - s.38(1)(b) (personal information)]; [Redacted - s.38(1)(b) (personal information)]
Cc: [Redacted - s.38(1)(b) (personal information)]; [Redacted - s.38(1)(b) (personal information)]
Subject: FW: religion and belief publication coverage
Attachments: religious vetting.pdf; religious vetting 2.pdf; religious vetting 3.pdf
For info
yvonne
From: [Redacted - s.38(1)(b) (personal information)] [mailto: [Redacted - s.38(1)(b) (personal
information)] @equalityhumanrights.com]
Sent: 06 December 2016 16:02
To: Strachan Y (Yvonne)
Subject: religion and belief publication coverage
[Redacted - s.38(1)(b) (personal information)]
Head of Policy and Communications
DDI: [Redacted - s.38(1)(b) (personal information)]
EHRC Scotland | 151 West George Street, Glasgow, G2 2JJ
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Attachment: religious vetting.pdf
Attachment: religious vetting 2.pdf
Attachment: religious vetting 3.pdf

Briefing for Meeting with EHRC – 24 January 2017
Appointment of teachers in Denominational Schools
Issue
1.The Equality and Human Rights Commission (EHRC) published its report ‘Religion or belief: is the law working?’ on 2 December 2016. Section 3.3 of this report focuses on employment of teachers in denominational schools. and recommends:
‘the Scottish Government should review the impact of section 21 (2A) of the Education (Scotland) Act to ensure its compatibility with the EU Employment Equality Directive.’
Background
2.In Scotland all schools, including denominational schools, run by local authorities are required to be open to pupils of all denominations and faiths. The Scottish Government supports authorities in this choice and openly welcomes the positive contribution that denominational education can make to
Scottish education in shaping individuals’ identity in our modern Scottish society. The responsibility for the appointment of teachers in denominational schools rests with local authorities.
3.In accordance with Section 21 of the Education (Scotland) Act 1980 (‘the 1980 Act’) all teachers in denominational schools, in addition to being fully qualified and General Teaching Council for Scotland (GTCS) registered, should be "approved” as regards their religious belief and character by representatives of the church or denominational body in whose interest the school has been conducted.The legislation does not state that teachers must belong to the same denominational body or church as that in whose interest a denominational school is conducted.
4.Under education and equality legislation, local authorities must ensure that candidates for all posts from all denominations and none are free to apply for posts in denominational schools, and are treated equally throughout the recruitment and selection process run by the Education Authorities. The exact
process of applying for approval and the way it is granted is a matter for the relevant local authority and the denominational body.
The EHRC’s Report
5.The EHRC report Section 3 - Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate? focuses on occupational requirements relating to protected characteristics in the UK and how organisations can impose specific belief requirements to reflect the religious ethos of the organisation. Section 3.3 of this report looks specifically at teacher employment mainly across the UK with a small reference to Section 21 (2A) of the 1980 Act.
6.The report makes specific reference to the Employment Appeal Tribunal judgment in Glasgow City Council v McNab which took place in March 2006 with a further appeal taking place in January 2007. The tribunal found that Mr McNab’s post was not on the list of posts for which the Roman Catholic Church required a teacher to be Catholic (as set out in a 1991 agreement between the Council and the Church) and therefore the Council should not have assumed that the Church would not have approved the appointment.
The European Commission Pilot against the UK
7.The National Secular Society filed a complaint with the European Commission in 2010 relatingto the compatibility of UK domestic law with EU Directive 2000/78/EC on Employment Equality, and in particular as regards Scotland, the compatibility of section 21(2A) of the 1980 Act. On 9 May 2013, the Scottish Government’s response to the European Commission was:
Broadly it is the case that the Directive in question permits a degree of discrimination on grounds of religion or belief in “occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief where, by reason of the nature of those activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. There does therefore appear to be a basis in EU law for some degree of discrimination on religious grounds in relation to at least some appointments in at least some schools, although any such discrimination would have to be justified and proportionate.
Sensitivity – Live Judicial Review
8.On 23 September 2016, Ms Preece, a teacher employed by Glasgow City Council requested Ministers to intervene on the decision made by the archdiocese to refuse her application for the post of Principal Teacher of Pastoral Care at St Margaret Mary’s RC Secondary School. Scottish Ministers declined this request on 2 November as it was viewed as not being an appropriate exercise of power under Section 21 (6) of the 1980 Act. On 19 December, Ms Preece submitted an application for a Judicial Review of the decision to refuse her application, made under section 21 (2A) of the 1980 Act for approval as regards her religious belief and character .The Scottish Government have been noted as a party of interest in this case, which Scottish Ministers are aware of.
Education Governance Review
9.The Education Governance Review was launched by the Deputy First Minister on 13 September, with the consultation closing on 6 January. The consultation asked for views on how education is run:
who should take decisions in relation to the education of children and young people and how the funding of education can be made fairer.
10. The Review did not specifically look at the role of denominational schools or appointment of teachers to these schools but did receive responses from key organisations on this matter including the Scottish Catholic Education Service, Scottish Secular Society and Catholic Headteachers’ Association of Scotland.

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