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The legal challenge to religious schools

The boundaries between religious freedom and equality rights are being tested in the courts

    I can’t think of a similar case to the employment tribunal claim we have recently reported, where a Jewish teacher has sued the Orthodox nursery which sacked her after learning she was living with her boyfriend.

    The school’s argument is that what staff do in their private lives may be their own business, but if parents get wind of this and threaten to pull their children from the school, it is entitled to take action.

    The legal niceties are such that the tribunal wants a little time to make up its mind. But whatever it decides could have a wider impact in determining how far faith schools can insist on staff conforming to their religious standards.

    While religious institutions in Britain have traditionally enjoyed a good deal of freedom in running their affairs, in recent years they have had to contend with the growing impact of equality law.

    Some 30 years ago an Israeli teacher unsuccessfully sued JFS on the grounds he was rejected for a job in the physics department because he was an atheist. Despite the subsequent law against religious discrimination, state-aided religious schools are still permitted to employ only teachers of their own faith, although the Equality and Human Rights Commission believes this freedom goes too far.

    There are other cases in the courts which could have a bearing on Jewish schools. The Appeal Court is expected shortly to deliver its verdict on a state-aided Muslim school which separates boys and girls for lessons. 

    The school was heavily criticised by Ofsted, which considered the segregation of the sexes as unfavourable to girls. The High Court, however, ruled there was no evidence of discrimination and Ofsted appealed. If the judges back the inspection service, conceivably that could raise questions about schools where girls take a different Jewish curriculum from boys.

    Another forthcoming Appeal Court case involves a former member of a Charedi community, the transgender father of five children who now lives as a woman. In the original decision, the judge ruled against allowing her face-to-face contact with the children because it would cause too much conflict, given the religious norms of their community.

    Ostensibly, her appeal is not about education. However, the family court judge noted there was “evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status”.

    If the Appeal Court judges have something to say on that point, it could have a knock-on effect on some independent Jewish schools.

    The grey areas between religious rights and equality regulations look set to keep the lawyers busy for some time to come.

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