St Matthias Church Of England School v Crizzle [1992] UKEAT 409_90_0712

EAT

St Matthias Church Of England School v Crizzle

[1992] UKEAT 409_90_0712 · 1992-12-07

MR JUSTICE WOOD (PRESIDENT) Over some eight days during March and April 1990 an Industrial Tribunal sitting at London (North) under the Chairmanship of Mr Laughton heard an application from Ms Crizzle alleging discrimination against her under the Race Relations Act 1976. The Industrial Tribunal rejected her allegations of direct but found in her favour on the issue of indirect discrimination.

The Board of Governors (Governors) appeal.

At a subsequent hearing on 28th June 1990 the same Industrial Tribunal unanimously reached the following decision:-

"(1)An Order be made (pursuant to S.56(1)(a) of the Race Relations Act 1976) declaring that, by making a requirement or condition for shortlisting as a candidate for the position of Headteacher at St Mattias Church of England School, the Applicant had to be a committed communicant Christian, the Respondents discriminated against the Applicant contrary to section 4(2)(b) and (c) of the Race Relations Act 1976 within the meaning of section 1(1)(b) of the Act,

(2)No Order for compensation be made pursuant to section 56(1)(b) of the Race Relations Act 1976.

(3)No recommendation be made pursuant to section 56(1)(c) of the Race Relations Act 1976."

St Matthias was and is a Church of England voluntary aided school situated at Granby Street, London E2. It has some 110 pupils of primary school age, of whom 60 were of Bengali origin. The School lies within the Parish of St Matthews, Bethnal Green. The Church of England plays a major role in the life of the School. The School is close to the Church and the Rectory. Fr. Bedford, the Chairman of the Board of Governors, is and was the Rector of Bethnal Green. Fr. Allen, the Clerk to the Governors, is and was his curate. The religious tenets of the Church of England form an important part of the School's life and in particular those tenets belonging to the Anglo-Catholic tradition within that Church. Pupils are expected to attend Mass each Thursday morning and once a week a class lesson is given specifically to prepare for the School Mass.

Of the Governors of the School some were appointed by the Parochial Church Council or the Deanery of the Diocese, some by the London Diocesan Board, some by the staff, some by the parents and the Headteacher was also a Governor. The London Diocesan Board for schools has the responsibility to oversee voluntary aided schools within the Diocese. Fr. Cleaver, as one of the staff of that Diocesan Board was concerned with 71 primary schools (including St Matthias). His functions included advising in connection with the appointments of Headteachers and deputies and concern with the religious life of the schools and pastoral care of staff. He was not a Governor.

Voluntary aided schools have been described by Lord Browne-Wilkinson recently in the case of Choudhury & Ors v. Governors of Bishop Challenor Roman Catholic Comprehensive School & Ors as follows -

" Voluntary aided schools

Voluntary aided schools are schools maintained, but not established by the Local Education Authority. There are approximately 5,000 such schools, virtually all of which were established by religious foundations. The majority were established by the Church of England and the Roman Catholic Church but others were established by, for example, the Methodist Church and the Jewish Community. In 1991 there were 701,000 pupils being educated in Roman Catholic schools of whom only 11.5% were non-Catholic.

The whole expense of maintaining a voluntary aided school is paid by the Local Education Authority except for the expense of providing, altering and carrying out certain repairs to the school buildings which expense is borne by the Governors: Education Act 1944, Ss 15(3) and 114(2). However, the Secretary of State bears a substantial proportion of the expense for which the Governors are responsible: see, for example, 1944 Act, S.102. Therefore voluntary aided schools are in effect a kind of partnership: the premises are provided and to an extent kept up by the religious or other body which established them whilst the cost of running the schools is borne by the public purse.

Voluntary aided schools are governed by an Instrument of government (constituting the governing body) and Articles of government regulating the way the school is to be governed (both of which are made by the Local Education Authority: Education (2) Act 1986, S.1. Section 1(5) provides that the Instrument of government and Articles of government must comply with any trust deed relating to the school."

We would only add that under S.23 of the Education Act 1944 secular instruction is to be under the control of local education authorities. In connection with religious education the governors have greater control. In particular we would refer to S.28(1) of that Act -

"28. Special provisions as to religious education in aided schools and in special agreement schools

(1) The religious instruction given to the pupils in attendance at an aided school or at a special agreement school shall be under the control of the managers or governors of the school and shall be in accordance with any provisions of the trust deed relating to the school, or, where provision for that purpose is not made by such a deed, in accordance with the practice observed in the school before it became a voluntary school: ..."

That wording is preserved in S.86(2)(a) of the Education Reform Act 1988. We would also draw attention to the provisions of S.1 of the Education Reform Act 1988 which reads:

"1-(1) It shall be the duty - (a) ... (b) ... (c)of every governing body or head teacher of a maintained school as respects that school;

to exercise their functions (including, in particular, the functions conferred on them by this Chapter with respect to religious education, religious worship and the National Curriculum ) with a view to securing that the curriculum for the school satisfies the requirements of his section.

(2)The curriculum for a maintained school satisfies the requirements of this section if it is a balanced and broadly based curriculum which -

(a) promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society; and

(b) ..." (Our emphasis)

We would also stress the importance of the trust deed and the practice observed at the school. The religious practice in worship in this school was that the Headmaster was frequently required to administer the sacrament of communion at Mass to some 10 pupils who had been confirmed. In the light of the ages of the children this number is perhaps not surprising although some might have thought it low. The whole school attended mass and there was no objection to the Bengali (Muslim) children attending.

Ms Crizzle is of Asian origin. She was born in Karachi on 27th February 1952. She came to England at the age of three and was educated here. She is a Roman Catholic, but is not a practising one, if that is understood to mean that she is not a communicant. In April 1987 she was deputy Headteacher at St Matthias.

A Mr Speirs was the Headmaster. In the summer term of 1989 he announced that he would be leaving at the end of that term in order to take up an appointment as Headmaster of another school. At a meeting of the Governors on 24th May one item for discussion was the appointment of a new Headteacher. A draft advertisement was agreed which contained the words:-

"The Governors invite applications from suitably qualified teachers with inner-city experience who are committed communicant Christians".

It was decided that Mr Speirs should explain the selection criteria to the Applicant and he did so on 25th May. The closing date was 30th June and on 29th June Ms Crizzle delivered by hand through the letter box at the Rectory flat a completed application form. A shortlisting meeting was planned for 19th June but by that time the only application was from a Mrs Spencer. It was agreed that Mrs Spencer should be shortlisted but that the list should be kept open until 30th June. There were in fact two more applicants but they were not shortlisted and on 4th July Mrs Spencer was appointed. On 5th July, the Applicant, Ms Crizzle was told of Mrs Spencer's appointment. Three days later, on 7th July, the Governors found Ms Crizzle's application form. It was suggested during the hearing that this was a deliberate attempt to discriminate against Ms Crizzle on racial grounds but that was rejected.

On 6th July Ms Crizzle was asked to attend at Mr Speirs' office. She was not forewarned of the purpose of the meeting. Mr Speirs told her that he was dissatisfied with the child assessment formed on a particular child, and there was a second matter namely her comments to a subordinate member of the staff about allocation of incentive allowances which he described as being entirely unprofessional. The Applicant and her Trade Union representative complained to Mr Speirs about the way that he had conducted this matter and he subsequently apologised. The procedure was clearly incorrect.

At paragraph 35 of its Decision the Tribunal say this -

"We consider that there was an unsatisfactory atmosphere between the Applicant on the one hand and Mr Speirs, Fr Bedford and Fr Allen on the other at least since 25 May. We think that it was probably related to the Applicant's feeling that she was not being treated fairly and to the reaction of Mr Speirs, Fr Bedford and Fr Allen to criticism together with their perception of what they considered to be the attitude of the Applicant to religious matters. We are not persuaded that it had any connection with the racial origins of the Applicant. ..."

During the autumn term of 1989 Ms Crizzle was acting Headteacher at a Roman Catholic school and during the lent term of 1990 she was acting Headteacher at a County School. Despite this she still considered herself to be a deputy Headteacher at St Matthias and due to return there for the summer term.

On the issue of direct discrimination, against the dismissal of which she does not appeal, Ms Crizzle made seven allegations. These issues were considered with great care by the Industrial Tribunal over some 12 pages before they were dismissed. We do not need to examine the details of each, but some of the facts which form part of the background to those allegations are part of the background to this case and some indeed have been set out already in the facts above.

One particular aspect on which importance was laid, were comments by Mrs Priest at the initial Governors' meeting on 24th May. The Industrial Tribunal say this -

"... We think that it is just as likely that Mrs Priest's comments related to her perception of the Applicant's attitude to religious matters as to her race. In all the circumstances we are not able to infer that the criticism was made on racial grounds."

That comment is made on the contents of the Minutes which were expressed as follows -

"... Mrs Priest felt that she ought to pass on to the other Governors the feelings of several parents concerning the existing Deputy Headteacher, Miss Crizzle. She said that she had heard parents voicing their concern that in the event of no appointment being made to the headship, Miss Crizzle might be made Acting Headteacher. Fr Paul was anxious not that the discussion should not become too personal, but said that it would illogical for the Governors to appoint as Acting Headteacher a person who would not qualify for appointment as Headteacher on the grounds of failure to satisfy all the Governor's selection criteria. It was not known whether or not Miss Crizzle intended to apply for the Headship, but the Governors felt it only fair to Miss Crizzle that their selection criteria should be carefully explained to her. Mr Speirs was then requested by the Governors to speak to Miss Crizzle concerning her position vis-a-vis their selection criteria for the post of Headteacher."

Before turning to the question of indirect discrimination the only other fact which might be considered relevant is the wording of the application form. The following questions appeared

-

"(a) Are you a communicant member of the Church of England or (b) Are you able to produce a statement from your parish priest that you are a practising member of the Roman Catholic Church? (c) Which church do you regularly attend (please give district)? (d) What special qualifications you have for teaching in a Church of England School? (e) What certificate do you hold for teaching of the Roman Catholic religion?

The answers by the Applicant were as follows:-

(a) No

(b) No

(d) No

(e) Catholic Teachers Certificate."

The Applicant in this case is supported by the CRE, but it is common ground that at all relevant times, no one considered for a moment that Racial Discrimination was in any way relevant to what was happening. As Mr Meeran has pointed out, the present situation may well merit further consideration of S.5 (General Occupational Requirement) of the 1976 Act and the possible inclusion of a sub-section 5(2)(e) to deal with the religious posts.

Indirect discrimination is defined by S.1(1)(b) of the 1976 Act.

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) ... (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but - (i)which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(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; and

(iii)which is to the detriment of that other because he cannot comply with it."

At the hearing before the Industrial Tribunal it was agreed between the parties that the Applicant's racial group was Asian, and the persons not of that group were all those in the country otherwise qualified for the post of Headteacher. It was also agreed that the Applicant had suffered detriment in that she would not have been able to qualify for shortlisting.

The sole issue, therefore, was that under S.1(1)(b)(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."

As to the condition itself, the Industrial Tribunal found as follows -

"... Our conclusion is that the Respondents applied to the Applicant a condition or requirement (which hereafter we refer to as a condition) that to be considered for shortlisting she had to be a "committed communicant Christian". Both parties before us agreed that this was so. We find that this phraseology would in practice have been interpreted as described by Fr Bedford in his evidence, ie that it would include not only members of the Church of England, but committed Christians of any church, who took communion in their own church and who were able to take communion at mass at St Matthias School. ..."

The objective which the Governors had in mind was submitted to be justified on the basis of the following fact:-

"42 The Respondents maintain that the condition was justifiable and submitted:- (a)In view of the importance played by the Church in the life of the school it was essential that the Headteacher should have full membership of the Church; and communicant status (ie the receiving of Holy Communion) was the mark of full membership. (b)The Headteacher was frequently required to administer the sacrament at the school mass; and to do this had to be a communicant, who had been licensed by the Bishop. (c)Because of the way the school was run and because of its ethos it was necessary that the Headteacher satisfied the condition. (d)The 1944 Act allowed for choice of school by parents. Different schools had different emphases. (e)A balance has to be drawn between the potential discriminatory effect and the required quality of the Headteacher within the aims of the school. (f)The justifiability of such a requirement for a Headteacher of a Church School has never been called into question before. (g)The condition was necessary. If it was not necessary, there were nevertheless very good theological and educational reasons why the condition was applied. (h)In considering justifiability, the Tribunal should take into account that there are potential candidates from the Applicant's ethnic group who could meet the condition (although a smaller proportion than white potential candidates)."

The Industrial Tribunal also referred to other factors, which it considered to be relevant. This was in paragraph 44 of the judgment -

"44 In addition to the matters referred to in the submissions on behalf of both parties, we consider that the following matters, which emerged in the evidence, are also particularly relevant:- (a)Although the Guidelines of the London Diecesan Board directed that the Governors requirements about Christian commitment and communicant status should be clearly stated ..., the Governors were free to decide what to do on this matter. (b)In the view of Fr Cleaver and of Mr Speirs it was not unusual for Church Schools to use the criterion. Of the 71 primary schools under Fr Cleaver's supervision, about one third each werein the Anglo-Catholic tradition, in the Liberal tradition and in Evangelical tradition. In his evidence about one quarter of all the schools used the criterion of a committed communicant Christian. Of six advertisements by schools in the Evangelical tradition, all used this criteria. (c)When Mr Speirs was appointed Headteacher in 1989 at St Luke's School (which is also a voluntary aided primary school in the Anglo-Catholic tradition) the criterion in the job specification was in the form of the specimen of the London Diocesan Board (...) with the inclusion of the word "or" after the word "Christian" in paragraph (j). The Applicant had also applied for this post and had been shortlisted. (d)Fr Cleaver considered that it was the duty of Church Schools to service the whole community and not only those who were Christians. There was a variation in the Trust Deeds of Church Schools with regard to the balance between educational needs and church needs, but he did not know what was the position under the Trust Deed of St Matthias School. There was a continuing issue within the London Diocesan Board as to the proper balance between educational and church needs of its schools. Schools should seek advice from the Board and have regard to the advice. (e)It was accepted by the Respondents that apart from the condition the Applicant was otherwise a suitable candidate."

It seems to us, on the authorities, that the approach of an Industrial Tribunal should be upon the following lines:-

(a) Was the objective of the Governors a legitimate objective - it is not for the Industrial Tribunal to redraft or redefine the objective? In the present case it 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 to those who were confirmed. The headteacher should have full membership of the church in order to foster the Anglo-Catholic ethos of the school.

(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 upon the Applicant's racial group and the reasonable needs of the Governors were they justified?

The same tests would apply to any Board of Governors who restricted the Headteacher to being a Jew, or a Muslim, or a Sikh, or a Buddhist or any other religion.

Hence the importance of this case.

Bearing in the mind the terms of the Education Act 1944 and the Education Reform Act 1988 which we set out above, and the emphasis laid upon the powers of Governors, more especially in spiritual matters, including worship, it seems to us, and we include a lay member of very considerable experience in this field, that Governors are entitled to take a decision affecting the way in which their own school is managed in spiritual affairs. It goes beyond "religious education". It includes worship and it affects the essential character of the school. Thus in the present case 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 seem to have supported this view, whatever their own religious background.

The approach of the Industrial Tribunal was different.

Their approach is to be found in paragraphs 40 and 41 of the Decision.

"40 The first question is what is the purpose or objective against which the need for the condition in this case is to be measured. It is stated on behalf of the Respondents as the central feature of their case on indirect discrimination that the school is dedicated to that part of the Church of England known as the Anglo-Catholic tradition; that the mass and tenets of the Anglo-Catholic tradition form a central and essential part of the life of the school; that the religious and educational life is treated as one; and that the Board of Governors are "in the business" of educating children to these aims which are part of every day life at the school. This was supported by the oral evidence on behalf of the Respondents. Is this the relevant or indeed sole purpose or objective of the school against which we should asses the reasonableness of the need for the condition or should we consider the wider context of the school in the educational system of the country, established under the Education Act 1944? The guidance in Bilka and in Clymo leads us to conclude that we should consider the wider context.

41 St Matthias School is a voluntary aided school. A school becomes a voluntary aided school by an order of the Secretary of State made pursuant to section 15(2) of the Education Act 1944. The Act provides for certain matters to be dealt with in accordance with the Articles of Government of the school and the Trust Deed of the School. We have received no evidence as to the context of the order of the Secretary of State or as to the contents of the Articles of Government or of any Trust Deed or as to any previous history of the school before or after the 1944 Act. No submissions were made to us as to how Church Schools were intended to fit into the state system of education. As we understand the position under the 1944 Act, there is a duty on the Secretary of State to promote education, a duty on the Local Education Authority to contribute towards the spiritual, moral, mental and physical development of the community by securing efficient education to meet the needs of the population and a duty on the Governors of a school to carry out the national policy on education in partnership with the Secretary of State, the Local Education Authority and the parents. The overall purpose appears to be efficient education, with specific rules to be applied by all schools concerning religious education and religious worship."

They emphasise later that it is not the need of the school itself as legitimately and reasonably seen by the Governors that is relevant, but that of St Matthias "As a school regulated by the Board of Governors within the framework of the Education Act 1944".

They express this view in paragraph 45 of the Decision as follows -

"45 The need we have to assess is not that of the Governors (whether as a Board or as individuals), nor of the Parish Church, nor of the London Diocesan Board, nor of the Church of England. In our view the need to be considered is that of St Matthias School, as a school, regulated by the Board of Governors within the framework of the Education Act 1944. We consider that the proper primary purpose or objective of the school is efficient education in the light of the needs of the community. The Board of Governors have (in the words used in Clymo ) "obligations or duties" to that end. The fostering of the Anglo-Catholic tradition in the school is perfectly legitimate, but we do not think that for the purpose of assessing justifiability it should have pride of place over efficient education . In this case the Respondents have applied an absolute bar against the assessment of the question whether a candidate has sufficient sympathy for the Christian faith to enable strong links to be maintained between the church in its Anglo-Catholic tradition and the school. Such assessment is implicit in the specimen job specification provided by the London Diocesan Board. Whether or not a candidate has communicant status could properly be a factor in the final choice for the post and be balanced with sympathy for the aims of the school and with the professional criteria set out in the job specification under items (a) to (i) (Exhibit A2 page 15). By applying the condition the Respondents have excluded the possibility of a balanced choice of the most suitable candidate for Headteacher in the context of the primary purpose of a school ie efficient education. We take into account particularly (i)The purpose of the school under the Education Act 1944.

(ii)the ethnic and religious background of the pupils and their parents and of the community.

(iii)The great difficulty in recruiting teachers generally and of appointing Headteachers, which in the latter case was increased by limiting consideration to committed Christians.

(iv)The fact that the London Diocesan Board by its standard job specification used a test which was much less strict than that applied by the Respondents.

(v)The practice of other primary schools under the care of Fr Cleaver.

(vi)The fact that the assistance of the Headteacher in administration of the sacrament at school mass was a convenient rather than a need, as this could be done by anyone licensed by the Bishop.

Our conclusion is that the Respondents have not established a reasonable need (in the context of justifiability) to apply the condition." (Our emphasis)

We confess that, in particular with the wide experience of one of our members, we take the view that the Governors of a school are entitled to examine and take account of the detailed way in which it is managed, not least in the form of worship. Is the decision of this Industrial Tribunal purely one of fact or can we discern an error of principle?

We have concluded that the objectives of the Governors and their reasonable need is not to be restricted to the consideration of St Matthias School, as a school regulated by the Governors within the framework of the Education Acts 1944 and 1988. The objective 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. If the requirement of a communicant was going to be applied, it seems to us that it would have been less than frank not so to state in the advertisement. Whatever the religious background of the majority of pupils, the Governors have the support of parents in the way school worship was conducted.

The test in Hampson v. Department of Education & Science

[1989] ICR 179

as approved in Webb v. Emo Air Cargo Ltd

[1993] 1 WLR 49

is as follows from the words of Balcombe LJ -

"In my judgement "justifiable" requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition."

Was the objective sought to be achieved a reasonable one for the Governors to take? Was the way in which it was sought to achieve it - namely by imposing the condition justifiable in the objective sense set out by Balcombe LJ?

Although the Industrial Tribunal found that the fostering of the Anglo-Catholic tradition in the School was perfectly legitimate, they decided that the need which they had to assess was not that of the Governors but that of efficient education. They did not think that the Governors' responsibility for fostering the ethos of the School should have pride of place over efficient education. That point, however, was not argued on behalf of the Governors. On their behalf Mr Prynne submitted that the Governors' requirement did not prejudice efficient education.

We consider that this Tribunal did not apply the correct test in Hampson , 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 by Balcombe LJ. In determining the need which they assessed, they misdirected themselves and erred in law. It is in the field of worship that the Governors' objective was based and it is in that context that the test of justifiability must be applied.

In our view 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 upon the Applicant's racial group and the reasonable needs of the Governors, the objective was justifiable.

We have found this an interesting and difficult case. As Mr Meeran has explained, it is the first of its kind, no doubt both the Commission for Racial Equality and those responsible for maintaining an over-view of the relevant legislation will give consideration to its problems.

The issues are both delicate and of increasing importance. We venture to think that there is an important distinction to be recognised between education and worship. We are satisfied that there was no criticism to be made of the Governors in this case, the only issue is were they in breach of the law. We find that they were not and this appeal must be allowed.

Leave to appeal.