The right of Northern Ireland's schools to discriminate against teachers on grounds of religion will be tested in Belfast's Court of Appeal this week.
The test case, which is being supported by the Equality Commission, involves Caroline Flynn and Beatrice Debast, two Catholic teachers who work at Laurelhill Community College in Lisburn. They applied unsuccessfully for the post of head of modern languages in the school but the job was given to two non-Catholic candidates on a job-share basis.
Traditionally Northern Ireland schools have been allowed to discriminate on religious grounds when making teaching appointments, something that would otherwise be illegal under fair employment legislation.
The case revolves around whether the post was a new appointment, in which case the school is entitled to discriminate on religious or political grounds, or a promotion, in which case it must treat all applicants equally regardless of their religious or political views.
Eileen Lavery, the Equality Commission's head of strategic enforcement, said: "We disagree with this exception from the fair employment legislation and we wish to restrict its operation as far as possible. Northern Ireland has changed since this exception was introduced. We now have many religions in schools."
The commission believes that secondary teachers should be given equal treatment immediately and that the same rights should be extended to primary teachers later.
The exemption which allows religious discrimination in educational employment arose after Catholic schools argued that they must be able to prefer Catholic teachers in order to preserve their religious ethos. State schools, which have a mainly Protestant intake and many of which were founded by Protestant churches, were also granted the right to discriminate on religious grounds partly in order to ensure equal access to employment for Protestant teachers.
The Christian churches argued that children should be educated in a school that paid full regard to their religion. Both sets of schools are now almost entirely funded by the taxpayer, although some supplement their incomes with fees, public appeals or trust funds.
The exemption fell foul of a European equal treatment directive and, after negotiations, it was limited to recruitment in 2003. The current situation is that religion can be taken into account when a teacher is being appointed to a new post, but once teacher are employed they must have equal rights to promotion.
Lavery said: "It is our view that this post was a promotion. The job was offered only internally. Some of the teaching duties would have continued if Debast or Flynn had been appointed and they would have had continuity of employment."
The school is arguing that it was a new appointment and say that if an internal candidate had not been appointed they would have advertised it. Since anyone who then applied would not have been protected from religious discrimination, Debast and Flynn were not covered.
Last year the school's argument was accepted by a tribunal which ruled that it could not apply fair employment criteria to the appointment. It did not rule on whether or not the appointment was discriminatory.
"We think the preliminary tribunal was wrong and it is important that we test its decision at the Court of Appeal so that bad law isn't left sitting there as a precedent," said Lavery.
Dr Maurice Malcolmson, head teacher of Laurelhill, said that because the matter is being dealt with at a legal level he didn't want to comment. Flynn and Debast also declined to comment pending the outcome of the case.