The right of the Scottish Catholic Church to "approve" the fitness of teachers to work in denominational schools has been upheld against a claim that it breaches the right to freedom of religion under the European Convention on Human Rights.
The judgment, by an employment tribunal in Glasgow earlier this month, vindicates Glasgow City Council's decision four years ago to introduce new procedures for the appointment of teachers to Catholic schools.
The council moved to protect itself from future legal challenges on religious discrimination grounds after avowed atheist teacher David McNab won his claim that he had suffered discrimination when he was not offered an interview for a pastoral care post in a Catholic school.
In this latest case, McShane v GCC, brought by a drama teacher in the council's permanent supply pool, employment judge Shona MacLean and two other tribunal members have for the first time, it is believed, dealt directly with the "approval" system and its interplay with religious discrimination legislation.
Michael McGrath, director of the Scottish Catholic Education Service, told TESS the case supported the Church's right of approval. It also showed that the scheme in its context was not considered discriminatory under either UK or European law.
"Most people do not understand that the Equality Act exists `without prejudice' to the existing section 21a of the Education Scotland Act 1980 (which accords the Catholic Church the right of approval)," he said.
"People assume that in the age of equality, you can't discriminate on the grounds of religion. But it says in this context you can in order to make the ethos of the school and that it is legal to do so."
A spokeswoman for the council described it as a "very important outcome", saying: "The tribunal is quite clear that the Church's decision to refuse approval left the council with no choice other than to move the teacher from her post at the denominational school.
"The tribunal is equally clear that regulation 39 of the Religion and Belief Regulations exempts the council from a finding of discrimination where we are acting under the terms of section 21 of the Education Scotland Act in relation to approval."
`Lack of approval cost me my job'
Anne McShane was a drama specialist employed in Glasgow's pool of permanent supply teachers. Baptised and educated in the Catholic faith, she nevertheless described herself as agnostic, although she attended mass regularly to support her mother.
In January, 2010, she was placed in the performing arts faculty at St Thomas Aquinas Secondary by the council to support her professional development.
She sought approval from the Archdiocese of Glasgow and opted to fill in the form that applies to those of Catholic faith and requires the support of the parish priest. Non-Catholics can still gain approval as long as they supply a testimonial from a suitable referee. But Ms McShane failed to produce a reference from a parish priest and her request for approval was turned down.
When she failed to receive approval, the council did not question why it had been denied, but told her she would have to move to a non- denominational school.
She told TESS this week: "I am very disappointed with the judgment. The whole affair has cost me my job. I am currently considering my position in relation to an appeal."
Original headline: RC Church can `approve' teachers for denominational schools, rules tribunal