Law Report: School governors can impose religious condition: Board of Governors of St Matthias Church of England School v Crizzle - Employment Appeal Tribunal (Mr Justice Wood, Mr J A Scouller and Mr R Todd), 23 February 1993

The objective of the governors of a Church of England voluntary-aided school of having a headteacher who could lead in the spiritual worship of the school related to the spiritual practices and ethos of the school. The governors' objective was reasonable and their requirement that applicants for the post of headteacher should be committed communicant Christians was, having regard to the governors' needs, justifiable, despite its discriminatory effect on applicants of Asian origin.

The Employment Appeal Tribunal allowed the governors' appeal from an industrial tribunal's decision that the governors had indirectly discriminated against Yvonne Crizzle under the Race Relations Act 1976.

Section 1(1)(b) of the 1976 Act provides: 'A person discriminates against another . . . if . . . (b) he applies to that other a requirement or condition which he applies or would appy to persons not of the same racial group as that other but - . . . (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality, or ethnic or national origins of the person to whom it is applied.'

St Matthias in Bethnal Green, east London, is a Church of England voluntary-aided school. It has 110 pupils of primary school age, of whom 60 are of Bengali origin. The religious tenets of the Church of England, particularly those of the Anglo-Christian tradition, form an important part of the school's life. Pupils attend mass each week and a weekly class is given specifically to prepare for mass. The headteacher is frequently required to administer the sacrament of communion at mass to pupils who had been confirmed.

In 1989, the governors advertised for a new headteacher, inviting applications from 'committed communicant Christians'. Ms Crizzle is of Asian origin and a Roman Catholic but not a communicant. She did not qualify for shortlisting and alleged indirect discrimination contrary to the 1976 Act. The sole issue was whether the condition was justifiable within section 1(1)(b)(ii).

Andre Prynne (Winckworth & Pemberton) for the governors; Gooram Meeran (Karim) for Ms Crizzle.

MR JUSTICE WOOD said that the approach of an industrial tribunal should be on the following lines. (a) Was the objective of the governors a legitimate objective? The objective was to have a headteacher who could lead the school in spiritual worship and in particular the administering of the sacrament at the weekly mass. (b) Were the means used to achieve the objective reasonable in themselves? and (c) When balanced, on the principles of proportionality between the discriminatory effect on the applicant's racial group and the reasonable needs of the governors, were they justified?

The same test would apply to any board of governors which restricted the headteacher to being a Jew, or a Muslim, or a Sikh, or a Buddhist or any other religion.

Bearing in mind section 28(1) of the Education Act 1944 and sections 1 and 86(2)(a) of the Education Reform Act 1988 and the emphasis laid on the powers of governors, more especially in spiritual matters, including worship, the governors were entitled to take a decision affecting the way in which their own school was managed in spiritual affairs. It went beyond 'religious education'. It included worship and it affected the essential character of the school.

The objectives of the governors related to the spiritual practices at St Matthias and its ethos. They thought it to be in the best interests of the school if it was led by a headteacher who assisted at mass and gave communion. All parents seemed to have supported that view.

The approach of the industrial tribunal was different. It emphasised that, when measuring the reasonableness of the need for the condition that applicants be committed communicant Christians, it was not the need of the school itself as legitimately and reasonably seen by the governors that was relevant, but that of St Matthias as a school regulated by the board of governors within the framework of the Education Act 1944, and that the primary purpose or objective of the school was efficient education in the light of the needs of the community.

However, the objectives of the governors could properly be considered outside 'efficient education'. It was not religious education which was the central issue but religious worship and the ethos of the school.

The test in Hampson v Department of Education and Science (1989) ICR 179, as approved in Webb v Emo Air Cargo Ltd (1993) 1 WLR 49, was: ' 'justifiable' requires objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition'.

The industrial tribunal did not apply the correct test, namely whether the objective of the governors was a reasonable one for them to seek, and whether the way in which they sought to achieve it was justifiable in the sense set out above. In determining the need which it assessed, it misdirected itself and erred in law. It was in the field of worship that the governors' objective was based and it was in that context that the test of justifiability must be applied.

The objective was legitimate and reasonable, the means used to achieve the objective were reasonable and when balanced on the principles of proportionality between the discriminatory effect on Ms Crizzle's racial group and the reasonable needs of the governors, the objective was justifiable.

There was an important distinction to be recognised between education and worship. There was no criticism to be made of the governors and they were not in breach of the law.