Education Bill

Memorandum submitted by the National Secular Society (E 78)

Supplementary to our submission to the Education Bill Committee on the Education Bill, as introduced.

Since our submission dated 7 March 2011, the Government has produced a more considered response to one of the major issues we raised, the failure to apply the provisions of s.59 School Standards and Framework Act (SSFA) in the form of a response by Lord Hill of Oareford to a parliamentary question from Lord Avebury.

Below we reproduce the parliamentary question asked by Lord Avebury, the written answer from Lord Hill of Oareford. We believe that his answer raises some serious questions which we believe we should draw to the Committee’s attention. Below, we provide our commentary on the written answer. We hope this will be of use to the Bill Committee.

Lord Avebury asked Her Majesty's Government

Why the protection against religious discrimination given to staff in community schools under section 59 of the School Standards and Framework Act 1998 is removed when they convert to academies; and what advice they have taken as to whether that removal is compatible with the European Union Employment Directive when it takes place on a large scale.

[HL71751]

Written answer: 15 Mar 2011

Lord Hill of Oareford: Section 59 of the Schools Standards and Framework Act 1998 ('SSFA') maintains provision from the Education Acts of 1936 and 1944 when the context surrounding the teaching of RE was very different, and there was no legislation providing teachers with protection from discrimination in employment or associated employment rights.

The current requirements in relation to the teaching of RE in both community schools and non-faith Academies are similar. All Academies must provide religious education in accordance with their Funding Agreements_ Funding Agreements require that Academies that do not have a religious designation must provide a curriculum which, while reflecting that religious traditions in Great Britain are in the main Christian, takes account of the teaching and practices of all the principal religions represented in Great Britain. The intention is that pupils can acquire an understanding of the practices and beliefs of all the major religions and no teacher in an Academy without a religious ethos will be in a position where they would be required to teach denominational RE, which might be contrary to their convictions or principles.

Whether a teacher in such an Academy would ever be required to teach RE will be a matter that can be governed by their employment contract. However, if a teacher were able to demonstrate that being required to teach RE according to the locally agreed syllabus amounted to less favourable treatment on the grounds of their religion or belief then they would be protected by the non-discrimination provisions of the Equality Act 2010 (the legislation that implements the Employment Framework Directive (2000/78/EC)).

To the extent that section 59 SSFA provides protection for staff on the grounds of their religion or belief, the Equality Act 2010 will do the same. This means that no teacher in an Academy without a religious ethos can lawfully suffer less favourable treatment because of their religion or belief and this is what is required by the Framework Directive. It is not considered necessary to replicate the wording of s59 SSFA for Academies without a religious ethos.

The Government is therefore satisfied that its approach is compatible with the Employment Framework Directive 2000/78/EC.

Hansard source: http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110315w0001.htm#11031583000754

NSS response to written answer provided by Lord Hill of Oareford

1. While we accept that in theory the teaching of religious education in community and voluntary controlled schools (as opposed to voluntary aided schools of religious character) is supposed to be non-denominational or non-confessional, we suspect a large proportion of non-believers would not wish to teach it. RE clearly goes beyond teaching pupils the broad details of Christianity and other major world faiths. The syllabus is still determined by SACREs dominated by religious representatives and is often used a 'celebration' of faith. The recent emphasis on using RE as a tool for cohesion can also lead to a biased presentation of the positive aspects of religion. I do hope that the Bill Committee will take into account that non-religious people also have consciences and principles which are equally worthy of respect and we believe many will feel that they do not wish to teach RE. So we suspect that the withdrawal of specific protection for those not wishing to teach RE could, at the very least, amount to indirect discrimination.

2. Lord Hill appears to be justifying the withdrawal of an antidiscrimination provision on the basis that we now have the European Framework Directive. If the European Directive does not cover the refusal to teach RE, as may be the case, then teachers will have lost a powerful protection as a direct result of their school’s conversion to an Academy. To justify regression on the grounds that we now have an Employment Directive that may not provide the protection previously available seems inexplicable.

3. Lord Hill appears to be saying it is mandatory for schools to provide RE and therefore it is perfectly reasonable for this to be contractually required. This does not seem to us to justify stripping teachers of previous protection. An important omission from this justification is that when s.59 SSFA was enacted in 1998 (and incidentally, when the framework directive was being planned) it was also mandatory for schools to provide RE – but this did not stop the protection being perpetuated in statute.

4. Lord Hill is offering no comfort for those who do not wish to teach RE and have been employed satisfactorily for decades on this basis, only to be faced with a contractual requirement on conversion of their school to an academy.

5. Our concerns go more broadly than transferring employees, who might just manage to hold on to their jobs post conversion through some transitional provisions or by appeal to a tribunal. We are concerned about their successors and the erosion of the pool of teaching jobs available in the longer term to those who do not wish to teach RE. This is particularly relevant given the long term decline in church attendance.

6. The remedies available to teachers who have been discriminated against in ways that would have been unlawful under section 59, but no longer have its protection because the school has been converted into an Academy (both in the case of RE and worship), are much more onerous. Precedents would have to be established under the Equality Act for requirements to and refusal to teach RE and over attendance at worship. There may be disputes as to whether it is lawful to require the teaching of RE or whether teachers could be required to attend worship but not participate in it. Fighting such cases would be very costly and beyond most teachers, whereas the law as it stands gives unequivocal direction and protection. It should be extended to academies, given this is to be the new "norm".

7. The very fact that Lord Hill is so adamant about not perpetuating s.59 suggests that there is in the Government's mind some significant difference between the current situation for teachers in schools benefiting from its protection and the situation for teachers on a school’s conversion to an Academy. This augurs badly for those affected.

8. Lord Hill's dismissive attitude to s.59 sits rather uneasily with its replication of its wording into the current Education Bill [as introduced] clause 58(3)(8):

No person, other than a reserved teacher, is to be disqualified by reason of their religious opinions, or of their attending or omitting to attend religious worship-

(a) from being a teacher at the Academy, or

(b) from being employed or engaged for the purposes of the Academy otherwise than as a teacher.

9. Finally, even more extraordinary still is that it was Lord Hill himself who signed the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010 (2010 No. 1937) on 28th July 2010 which contained the provisions in paragraph 5 (reproduced below) below, specifically perpetuating the provisions of s. 59 SSFA to voluntary controlled schools. We applauded his instigation of this continuation of protection and cannot see why it is not just as appropriate for nonreligious teachers in community schools as it is in religious schools.

Transitional provisions

5.-(1) This article applies if-

(a)an Academy order has effect in respect of a foundation or voluntary controlled school which is designated by order under section 69(3) of SSFA 1998 as a school having a religious character, and

(b)the school is converted into an Academy.

(2) Despite section 6(8) of the Act, on and after the conversion date-

(a)section 124A(2) and (3) of SSFA 1998 do not apply in relation to an existing non-reserved teacher while the teacher is employed or engaged as a teacher at the Academy,

(b)section 59(2) to (4) of SSFA 1998 continue to apply in relation to an existing non-reserved teacher, and an existing member of the non-teaching staff, while that person is employed or engaged at the Academy.

(3) An "existing non-reserved teacher" is a teacher who-

(a)is employed or engaged as a teacher at the school immediately before the conversion date,

(b)is not a reserved teacher (within the meaning given by section 58(9) of SSFA 1998) at that time, and

(c)becomes employed or engaged as a teacher at the Academy on the conversion date.

(4) An "existing member of the non-teaching staff" is a person who-

(a)is employed or engaged for the purposes of the school immediately before the conversion date, otherwise than as a teacher, and

(b)becomes employed or engaged for the purposes of the Academy on the conversion date.

6.-(1) This article applies if-

(a)an Academy order has effect in respect of a foundation or voluntary school which is designated by order under section 69(3) of SSFA 1998 as a school having a religious character,

(b)the school is converted into an Academy, and

(c)immediately before the conversion date, section 60(7) of SSFA 1998 applied to a teacher at the school.

(2) On and after the conversion date, section 60(7) of SSFA 1998 continues to apply in relation to an existing teacher at the school while the teacher is employed or engaged as a teacher at the Academy.

(3) An "existing teacher" is a teacher who-

(a)is employed or engaged as a teacher at the school immediately before the conversion date, and

(b)becomes employed or engaged as a teacher at the Academy on the conversion date.

March 2011