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Company Law

Q: Can I only employ Christians?

I have recently set up an evangelical Christian theatre company and wish to employ Christians only. I am aware that churches and other religions organisations are allowed such a restriction in their advertisements for jobs but is this also legal for a theatre company that is not a charity?

A: The matter is governed by the Employment Equality (Religion or Belief) Regulations 2003 made under the European Communities Act 1972 in response to a European Directive. It came into force on December 2, 2003.

Under these regulations there is a general prohibition on discriminating against applicants for employment on the grounds of religion by refusing to offer those persons employment, or in the arrangements made for the purpose of determining to whom employment should be offered. However, there are two exceptions to this basic prohibition. The first is where being of a particular religion or belief is a genuine occupational requirement, having regard to the nature of the employment or the context in which it is carried out. The second exception is where being of a particular religion or belief is a genuine occupational requirement in circumstances where the employer has an ethos based on religion or belief, having regard to that ethos and to the nature of the employment or the context in which it is carried out. I doubt whether you could rely on the first exception unless the particular job vacancy (which you have not described) could not reasonably be carried out by a person of another religion.

If it is an office job, such as a secretary or clerk, it is hard to see why the actual work itself could not be carried out by a person of a different religion. If, however, the job were to involve preaching or writing text of a Christian or an evangelical nature then, of course, the first exception might apply. Similarly, an actor, by the very nature of his profession, should have no problem in performing a religious role, different to that of his own particular religious persuasion. The test is an objective one and the guidance notes on the regulations, published by ACAS make it clear that the holding of a particular religious belief does not become a genuine occupational requirement merely because the employer decides that it should. The genuine occupational requirement must be shown to apply to the job and not to the individual.

The second exception may possibly provide you with an escape route. Here it is for the employer to show that his organisation has an ethos based on religion or belief. It will be relevant to look at all the surrounding circumstances such as whether it already employs persons of another religion, for example, either at all or in the particular job which is being advertised. Also look at how the organisation's objectives are described in its constitution or similar documents and in any contracts of employment and what other evidence exists about the operation of the employer's organisation and the way it is run. It would help to support your case if, for example, the subject matter of your performances on stage were to be of a peculiarly Christian or evangelical nature, or if you publish literature of that nature as part of your business activities or if you perform only or mainly before Christian audiences, such as in church premises or whatever.

The Christian occupational requirement must also be proportionate in its application to the individual job, which means that it has to be shown to be both an appropriate and necessary means of achieving the legitimate aim of the employer, who must be able to demonstrate that it is essential for the person carrying out the job to be of the Christian faith. If your organisation has an ethos based on Christian religion or belief and, in consequence of this, being a Christian is a genuine occupational requirement of the job, that may be enough.

To sum up, it is possible that you may be able to rely on one or other or both of the above exceptions, the "ethos" exception being more likely but I would need to know more about your organisation, how it operates and who it currently employs before I could express a definitive view. The duties of the particular job and the context within which it is carried out are highly relevant. The guidance notes make it clear that even if an organisation has a religious ethos it should not expect to apply that as a blanket requirement. The way you have framed your question leads me to suppose that a blanket requirement is precisely what you have in mind, in which case you will most likely be caught by the prohibition.

First published 31st December 2004