Religious Ethos and Equality

Many teachers who do not practice or share the religious ethos of their school patron express concerns regarding discrimination given their non-belief or the non-congruence of their personal lives with the ethos practiced in the school. Concerns were most particular to:

• divorced or separated teachers
• unmarried/single teachers who are parents, particularly mothers
• non-religious practising teachers and teachers of a differing religion from the school religious ethos

The following outlines the legislation that seeks to protect teachers in this situation.

The Employment Equality Acts 1998 protects all employees from discrimination on the nine grounds. Section 37 recognises that

‘a religious, educational or medical institution] which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if— (a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or (b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution’

An amendment to this legislation, the Equality (Miscellaneous Provisions) Act, 2015 supplemented Section 37 of the Employment Equality Act, 1998. including:

(1A) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas more favourable treatment on the religion ground referred to in paragraph (a) of that subsection shall be taken to be discrimination unless—

1. that treatment does not constitute discrimination on any of the other discriminatory grounds, and
2. by reason of the nature of the institution’s activities or the context in which the activities are being carried out, the religion or belief of the employee or prospective employee constitutes a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos.

(1B) Where an educational or medical institution referred to subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, action of the type referred to in paragraph (b) of that subsection shall be taken to be discrimination unless by reason of the nature of the employment concerned or the context in which it is carried out—

1. the action is objectively justified by the institution’s aim of preventing the undermining of the religious ethos of the institution, and
2. the means of achieving that aim are appropriate and necessary.
3. proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to:
   1. any other action the employer may take in the circumstances,
   2. the consequences of that action for that employee or prospective employee,
   3. the employee’s or prospective employee’s right to privacy, and
   4. the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.

Application of legislation

In summary, The Equality (Miscellaneous Provisions) Act, 2015 has significantly reformed the treatment of employees and prospective employees in educational institutions, which are in receipt of finances provided by the Oireachtas. Religion is the sole ground that an educational institution can positively discriminate on. If religion is a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos, the treatment by the educational institution will not constitute discrimination. An educational institution can take action to prevent the undermining of its religious ethos if it can be objectively justified by the institution’s aim and the action is appropriate, necessary and proportionate.

While the key issue in this legislation is the establishment of actual damage to the school ethos as opposed to perceived or potential damage, the Committee identified significant concerns among teachers whose personal life may not be fully congruent with the religious practice, doctrine or ethos of their school patron/employer. Concerns centre on the potential of the religious patrons (teacher employer) to make the case that a teacher’s personal life or professional practice is undermining or causing damage to the school ethos.