Responding to a letter from the National Secular Society to the Secretary of State, shared with the media, about the protection of non-religious staff in faith schools, a Department for Education spokeswoman said:
We are disappointed with the misleading claims from the National Secular Society (NSS). The clause highlighted by the NSS is in fact there to ensure that the statutory rights of staff are protected when a school converts to Academy status.
The Education Bill does not reduce protections for teachers within faith schools that convert into Academies and we are confident that the Bill does not breach any domestic or European law.
A combination of provisions within the Bill, the Academies Act Commencement Order, Funding Agreements and the Equalities legislation provide protection for teachers when schools convert to academy status.
If, as can only happen with the agreement of the Secretary of State, an academy later changes from a model similar to voluntary-controlled to voluntary-aided teachers will be protected through a transitional provision. There have been six such conversions in the since 2007.
We consider that three main points are raised and our responses to these are as follows:
Where a voluntary controlled or foundation school with religious character converts to Academy status, clause 58 of the Education Bill continues the protection of non-reserved teachers that existed before the conversion. The protection is afforded to such schools in the meantime by way of transitional provisions in the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010. Therefore it is not right to say that teachers in such schools are not currently protected if their schools convert to Academy status. The position of future staff is also protected in the funding agreement.
After conversion, it is possible for such an Academy to change its governance arrangements so that they reflect the maintained school voluntary aided model, in the same way that it is possible for a voluntary controlled or foundation school in the maintained sector to become a voluntary aided school. In practice this is rare - there have been 75 incidences of conversion from VC to VA model over the last 10 years.
Just as that process requires consultation in the maintained sector, we would expect any Academy wishing to make such a change to set out their business case fully and ensure a wide and thorough consultation was carried out. The Secretary of State would only approve an amendment to the Funding Agreement or the Memorandum and Articles if he was satisfied that sufficient consultation had taken place in the case of such a change and that the responses to the consultation showed that such a change was supported. If the Secretary of State agreed to change the governance arrangements of an Academy a deed of variation would be needed to make these amendments.
The Bill enables the Secretary of State to make an Order to disapply new section 124AA of the 1998 Act in the case of such a change, which would mean that section 124A of the 1998 Act would apply so that the school could lawfully discriminate in respect of up to 100% of its teachers on religious grounds. However, any Order made would include transitional provisions to continue the protection of existing non-reserved teachers. In the case of any change of category from voluntary controlled to voluntary aided in the maintained sector, it is secondary legislation that provides for the protection of non-reserved teachers, not primary legislation (The School Organisation (Prescribed Alterations) Regulations 2007, paragraph 55 of Schedule 3). Therefore, we do not see any need to put this on the face of primary legislation.
The protections afforded to staff at community and secular voluntary and foundation maintained schools against discrimination on grounds of religious opinions etc. in current legislation are not applied to independent schools. Academies have existed since 2000 and we are not aware that this issue has been a problem in practice in this time. We are content to rely on the general Equality legislation in respect of such teachers.