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Can Charities Justify Treating Individuals Differently on the Grounds of Particular Protected Characteristics?

on Friday, 08 October 2021.

In a recent case, a charity's recruitment policy, which required applicants to refrain from 'homosexual behaviour', was ruled as discriminatory - but when can charities justify treating individuals differently?

Discrimination in Recruitment Policy

Cornerstone (North East) Adoption and Fostering Services Ltd (Cornerstone) is a registered charity which recruits and supports foster carers for children in local authority care. Cornerstone operates in accordance with evangelical Christian principles and it would only recruit carers whose conduct it viewed as consistent with evangelical Christian beliefs, which were set out in a Code of Practice.

In accordance with this Code of Practice, carers were expected to, amongst other things, regularly attend church, pray, read the bible, set a high standard of personal morality and abstain from "all sexual sins including…homosexual behaviour".

In 2019, Ofsted inspected Cornerstone and concluded that the requirement that carers refrain from homosexual behaviour was discriminatory and determined that the recruitment policy should be changed.

Cornerstone applied for judicial review of Ofsted's decision, but the High Court determined that this part of the policy was unlawfully discriminatory on the grounds of sexual orientation and the application failed. Cornerstone subsequently appealed to the Court of Appeal.

The Court of Appeal Decision

The Court of Appeal dismissed the appeal, finding that the policy amounted to both direct and indirect discrimination on the grounds of sexual orientation. Cornerstone argued that the discrimination could be justified under an exemption for charities, contained within s193 of the Equality Act. This allows charities to restrict the provision of benefits to persons who share a protected characteristic provided that it can be objectively justified as a proportionate means of achieving a legitimate aim. Cornerstone described its legitimate aim as "..manifesting the beliefs of evangelical Christianity…to the benefit of the carers and children cared for…and society as a whole".

However, the Court of Appeal rejected this argument, commenting that courts should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals was a disproportionate limitation on their right to manifest their religion.

It noted that discrimination on the grounds of sexual orientation required 'weighty reasons' and 'clear evidence' to justify it and concluded that Cornerstone had failed to discharge this burden as it has provided no credible evidence that changing the policy to remove the discriminatory provision would have a seriously detrimental impact on carers or children.

Considerations for Your Business or Charity

This case saw a collision between two protected characteristics and it suggests, as previous cases have, that religious beliefs, though protected, cannot be relied upon to justify discrimination on the grounds of other protected characteristics.

While the Equality Act generally prohibits discrimination based on any of the protected characteristics, charities should be aware that s193 does allow them to restrict their services to persons who share a protected characteristic in certain circumstances, but only if the treatment is a proportionate means of that charity achieving a legitimate aim, or is for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

If you require further advice on cases of discrimination, please contact Lorna Scully in our Employment Law team on 0121 227 3719, or complete the form below.

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