The recent Court of Appeal case of R (Cornerstone Fostering) v Ofsted has revisited the potential areas of conflict between religious belief and sexual orientation.
Cornerstone Fostering are an evangelical Christian charity providing fostering services.
Their recruitment policy set out the expectation that their foster carers should be practising evangelical Christians and, critically, that they should share the belief that “sexual intercourse is to be enjoyed exclusively within Christian marriage” and “abstain from all sexual sins including … homosexual behaviour”.
The Charity Commission had approved Cornerstone’s recruitment policy finding that it did not discriminate on the grounds of sexual orientation.
However, Ofsted also regulated Cornerstone. Following an inspection in 2019, Ofsted prepared a report finding that the recruitment policy was discriminatory on the grounds of sexual orientation, discrimination which could not be justified.
Cornerstone challenged Ofsted’s report, which led to the legal proceedings.
The case involves two distinct areas of law.
Firstly, section 193 of the Equality Act provides that a charity will not discriminate if they restrict the provision of benefits to people who share a protected characteristic. However, a charity must show that the provision of benefits must be a proportionate means of achieving a legitimate aim. In this case, the Court of Appeal found that the actions of Cornerstone were not proportionate. Previous caselaw confirms that “particularly weighty reasons are required to justify differential treatment on the grounds of sexual orientation”. The Court of Appeal found that, in this case, there was an absence of evidence supporting the argument that the recruitment policy was a proportionate means of achieving a legitimate aim. Therefore, Cornerstone’s recruitment policy was found to be discriminatory on the grounds of sexual orientation.
Secondly, Schedule 23 of the Equality Act provides that a religious organisation is permitted to apply a restriction based on religious belief or on sexual orientation if it is necessary to comply with the doctrine of the organisation. At face value, this provision would have allowed Cornerstone to maintain its requirements relating to sexual orientation. However, these provisions are disapplied where the charity is acting on behalf of a public authority under the terms of a contract. The Judge remarked “Parliament has, speaking broadly, chosen to give priority to religious faith in a private context but to give priority to sexual orientation where public services are concerned”. He concluded “Cornerstone’s policy, which specifically requires carers not to engage in homosexual behaviour, is as clear an instance of direct discrimination “because of” a protected characteristic as can be imagined … the fact that the rule on homosexual behaviour forms part of a broader belief system does not alter the fact that this aspect of Cornerstone’s policy expressly excludes people of a particular sexual orientation”.
Whilst this case concerned foster care, it will apply equally to any faith organisation providing a “public service”; faith charities must therefore proceed with care in such circumstances - especially where acting under a contract with a public body but potentially even when not - to ensure that what might be permitted in the ordinary course of their charitable activities, is not discriminatory because of the public funding element.
Given charities are by definition there for public benefit and enjoy tax reliefs, one can see this being revisited again in areas that are less directly about acting on behalf of state bodies under contract.
This case also provides a useful reminder that, where there are two regulators involved, there is a risk that they may reach differing opinions on the legality of operations. The fact that one regulatory approves activities does not mean those activities are beyond legal challenge.