Glasgow City Council v McNab

Although the Employment Equality (Religion or Belief) Regulations 2003 outlawed discrimination on the basis of someone’s religion or belief, they also allowed for a number of exceptions.

In Glasgow City Council v McNab (IDS 825), the Employment Appeal Tribunal (EAT) said that the Council could not rely on the genuine occupational requirement (GOR) exception to discriminate against an atheist teacher.

Background facts

Mr McNab had worked as a mathematics and computer teacher at St Paul’s (a Roman Catholic High School maintained by the Council) since 1990. In September 2004 he applied for the post of acting head of pastoral care.

He was not even offered an interview, however. The Church relied on a 1980 Scottish Education Act stating that it could vet all teachers for their religious beliefs, and a subsequent agreement with the council in 1991 that only Catholic teachers would be appointed to certain senior positions in the school. The council believed this was a “reserved” post within the meaning of that agreement.

Mr McNab claimed he had been discriminated against under the religion or belief regulations. The council accepted they had discriminated against him, but argued that being a Roman Catholic was a GOR for the post.

The law

Regulation 7(2) of the regulations allows employers to discriminate on the grounds of religion or belief as long as they satisfy the following, general GOR test:

  • that subscribing to a particular religion or belief is a genuine and decisive requirement for the job
  • that it is proportionate to apply that requirement in this particular case
  • that the person either does not meet the requirement for the job, or the employer is not satisfied that they do and it is reasonable in all the circumstances for them to reach that conclusion

Regulation 7(3) also allows some organisations that have an ethos based on religion or belief (like faith schools) to discriminate. The test is very similar to the general GOR.

Tribunal decision

The tribunal decided, on the evidence, that the council had not established a GOR under regulation 7(2) or 7(3).

It said that the job did not require postholders to be Roman Catholics since they could be held by non-Catholics in non-denominational schools, and much of the teaching involved had no relevance to the doctrines of the Church.

On the odd occasion that the teachings of the Church were relevant, the tribunal said that a non Catholic pastoral care teacher could easily arrange for those particular lessons to be given by a teacher approved by the Church.

The Council could not, therefore, argue that subscribing to the faith of Roman Catholicism was a GOR for the post, nor was it proportionate to apply that requirement to pastoral care teachers.

EAT decision

In its first decision dealing with the religion and belief regulations, the EAT agreed with the tribunal. It said that the school could not rely on the GOR under regulation 7(2) or 7(3).

It dispatched the Council’s arguments in favour of regulation 7(2) by saying that “just because the 1991 agreement specified that a teacher had to be a Roman Catholic for certain posts, that did not mean that that requirement had to be regarded as a genuine occupational requirement for the purposes of regulation 7(2) of the 2003 regulations.”

It also agreed with the tribunal that the education authority could not rely on regulation 7(3) as they could not show that they were an employer who had "an ethos based on religion or belief". The fact that it operated a statutory system which allowed various religious denominations to advance their ethos through schools that it maintained “did not mean that they espouse the same ethos at all.”

It therefore upheld the tribunal’s finding of religious discrimination and its award of £2000.