Court of Appeal: Peter Jackson, Asplin and Nicola Davies LJJ, [2021] EWCA Civ 1390, [2021] IRLR 993, 24 September 2021

This was an appeal from the decision reported previously in this blog. The claimant was an independent fostering agency which sought to recruit (exclusively) evangelical Christian foster carers whose conduct was consistent with “traditional Biblical Christian” standards of behaviour, which did not include same-sex sex. The High Court rejected its challenge to an Ofsted report which found that its policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the EqA 2010 and the HRA 1998, ruling that the policy discriminated unlawfully on grounds of sexual orientation and was not saved by s193 EqA (see further below) or, because it provided services on behalf of a public authority, by para 2 of Sch 23. It required that Cornerstone alter the policy. Cornerstone was granted permission to appeal the High Court’s ruling on direct and indirect sexual orientation discrimination under the EqA and on the application of s193 EqA, though not on on the application of para 2 of Sch 23. It was also permitted to appeal the High Court’s findings that  that Cornerstone had breached prospective foster carers’ Convention rights, and that Ofsted had not breached Cornerstone’s Convention rights.

The appeal was dismissed on all grounds. (Peter Jackson LJ, with whom Asplin and Nicola Davies LJJ agreed, ruled that Cornerstone’s recruitment policy involved direct sexual orientation discrimination and was disproportionate to the aims pursued, this with the effect that the statutory defence did not apply, the discrimination by Cornerstone breached foster carers’ rights under Article 14 and 8 and Ofsted had not breached cornerstone’s rights under Article 9 ECHR.

At §61 Jackson LJ relied on the decision of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 and those of the Supreme Court in R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728 and Preddy v Bull [2013] UKSC 73, [2013] 1 WLR 3741, as authorities for the proposition that, in determining direct discrimination, “the focus is on the objective factual criteria that are applied, and not upon the subjective motives for which they are applied”. At §62 he observed that “A further question arises where a criterion that is applied as a basis for discrimination is not expressed to apply directly to a person with a protected characteristic. Here, the question is whether the difference in treatment is necessarily linked to a characteristic indissociable from the protected characteristic: Preddy at [20]. In James, the criterion of pensionable age was indissociable from the protected characteristic of sex. In Preddy, the requirement that a couple be married if they were to occupy a room with a double bed was indissociable from the protected characteristic of sexual orientation”. At §63 his Lordship stated that the fact that “the allegedly discriminatory criterion has an impact that extends beyond the particular protected characteristic [here on all couples not in heterosexual marriage] … will not prevent a finding of direct discrimination, provided that the difference in treatment is objectively because of the protected characteristic or a characteristic indissociable from it”, noting at §64 that Cornerstone’s policy in terms prohibited “all sexual sins including … homosexual behaviour …” and rejecting the claim that “because its policies refer to ‘homosexual behaviour’ rather than sexual orientation, [Cornerstone] does not discriminate on the latter ground.”

At §67 Jackson J accepted the arguments put for Ofsted that “less favourable treatment ‘because of’ a person’s sexual orientation, is broad enough to capture discrimination based on activities which are closely connected to sexual orientation, namely sexual behaviour with a person of the same sex… The criterion that is applied to all is marriage, but that criterion is applied differently depending on whether the applicant is part of a same-sex or an opposite-sex marriage… [that] s 23(4) expressly provides that the fact someone is married to a person of the same sex and another is married to a person of a different sex does not constitute a material difference between circumstances [and that]… per James, discriminatory circumstances are not ‘circumstances relating to each case’. It is only by treating the religious beliefs of Cornerstone as a material difference that one can conclude that its provision of services does not involve direct discrimination, but those beliefs are themselves discriminatory, in that they do not recognise same sex marriage as equivalent to opposite sex marriage”. He also accepted Ofsted’s argument that “as a regulator it did not need to identify an actual victim to conclude the policy was discriminatory”.

Jackson LJ rejected Cornerstone’s challenge to the High Court’s findings in respect of discrimination contrary to Articles 8 and 14. As to the argument that Cornerstone itself had been subject to discrimination contrary to the Convention, the High Court had rejected the claim that Cornerstone’s exclusionary recruitment policy was a manifestation of religious belief, further that (§303, cited at §89) “the non-recruitment of gay and lesbian foster carers is not a manifestation of religious belief for the purposes of Article 9(1). It does not have a sufficiently close connection with Cornerstone’s forum internum. The ban on the recruitment of gay and lesbian carers does not directly express the belief concerned and is only remotely connected to a precept of faith. Evangelical Christian gay men and lesbians are full members of that faith community in every sense.” Jackson LJ disagreed with this conclusion at §91, ruling that the Judge below had wrongly considered whether “Cornerstone’s policy was sufficiently closely connected to its aims [finding that it was not], when the correct question was whether it was sufficiently closely connected to its beliefs”, also that he had wrongly merged questions of manifestation and of substantial interference” “In merging the two questions, he has overlooked his finding in relation to the doctrinal necessity of the religious criterion, a finding of clear importance to the question of manifestation.”

Jackson LJ went on to rule at §98 that the judge below had erred in determining that Ofsted’s requirements had not interfered with Cornerstone’s religious belief “materially, that is, to an extent which was significant in practice” (citing R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246 per Lord Nicholls §39). Cornerstone had argued that the judge had (§95) “severely overreached the court’s role … by telling it how it can (better) fulfil its religious mission and … that it can continue to have a religious ethos, when it has a right to have its religious ethos” and challenged his “assertion that evangelical Christian gay men and lesbians are full members of that faith community in every sense”. Jackson LJ ruled that “Ofsted’s requirement that [Cornerstone] changes its recruitment policy in a manner that is dissonant with one of its foundational purposes is consequently a matter that is of significance for it in practice”.

Finally, as to proportionality, Jackson LJ noted at §109 that it was “common ground” that the same approach should be taken as regards this question to the question of proportionality under s193 EqA, the justification of any indirect discrimination under s19(2) EqA and the alleged breaches of Convention rights by Cornerstone and Ofsted. He agreed with the High Court that particularly weighty reasons were required to justify differential treatment on the grounds of sexual orientation (citing Catholic Care (Diocese of Leeds) v The Charity Commission for England and Wales [2010] EWHC 520 (Ch), [2010] 4 All ER 1041 §48; R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32, (2018) 45 BHRC 169,  §32). The Judge below had ruled that the aims on which Cornerstone sought to (increasing the pool of evangelical Christian foster carers; affording critical support to carers; allowing those within the evangelical Christian community to serve by promoting stable and durable placements; and manifesting the beliefs of evangelical Christianity in the practice of Christian charity and the support of Christian family life, to the benefit of the carers, the children cared for, Cornerstone and society as a whole) failed the second and third limbs of the Bank Mellat test (Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, [2014] AC 700) because there was no national shortage of foster carers, as distinct from a relative shortage of carers to meet the specific needs of children in care, and that there was nothing to suggest that recruiting evangelical Christian carers would respond to any relative shortage driven by such “matching” problems (§202). Further, “excluding a category of evangelical Christians (gay men and lesbians) from being foster carers” was not consistent with the aim of increasing the number of evangelical Christian carers in view of the fact that, in his view, there were “gay evangelical Christians” who could provide stable and durable placements (§§203-206). This being the case, the policy “failed to show that there is a less intrusive means of meeting [its] aims” (§208).

Jackson LJ, having suggested at §124 that while “Arguments of principle can be easier to evaluate when they come down to disputes about homely items like beds, necklaces or cakes [as in Preddy, Eweida v UK (App nos. 48420/10, 59842/10, 51671/10 and 36516/10)  (2013) 57 EHRR 8, and Lee v Ashers Baking Company Ltd & Ors [2018] UKSC 49, [2020] AC 413] … the principles underpinning the assessment of proportionality are clear enough”, went onto state that, while there was “no automatic hierarchy under the HRA 1998 as between qualified Convention rights [citing Re S (a child) [2004] UKHL 47, [2005] 1 AC 593 §17] the ECtHR has repeatedly emphasised the need for particularly weighty reasons to justify differential treatment on the ground of sexual orientation or other “suspect” grounds of discrimination. These encompass birth out of wedlock, sex, sexual orientation, race and ethnic origin, and nationality; it is as yet unclear whether the ECtHR considers religion to be included in this category” (§125).

At §126 Jackson LJ cited Lord Reed in R (SC) v Secretary of State for Work and Pensions  [2021] UKSC 26, [2021] 3 WLR 428 (see associated blog) §§98-116 on justification in this category of case, stating at §127 that the fact that “Parliament has, in relation to religious organisations that offer a service to the public, given a clear indication that discrimination on the basis of sexual orientation is impermissible” was, though not in his view “determinative” (cf Julian B Knowles J below), “a significant indicator of what Parliament intended when the question of proportionality is considered in the contexts of indirect discrimination generally under s 19, charities under s 193, and Convention rights under the HRA 1998”. Jackson LJ considered the decision in Catholic Care in which Sale J’s “proportionality assessment  … while focusing on s 193 only, shows how the court will closely scrutinise the evidence within the framework of principle” (§133). He stated at §141 that he regarded the proportionality assessment as less clear cut than the judge below had and that “some of Cornerstone’s arguments on justification warranted fuller consideration”, in particular the absence of “identified victims” of its policy, the “apparent success of [its] work for children”, “the intensity of the challenge for those fostering children with high levels of need”, the “critical support that carers were reported (by Ofsted) to gain from being part of a common venture with co-religionists” and “Cornerstone’s own perception of the quandary in which Ofsted’s requirement placed it, when it is better placed than the court to decide what it ought to feel about that”.

It his Lordship’s view, these matters challenged the conclusion that Cornerstone’s case failed at the third stage in Bank Mellat and (§141) “the real issue arose at stage four: whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, the former outweighs the latter”. On this, the judge below had been correct to find that the different treatment was not justified either under the EqA or the HRA. Jackson LJ explained his conclusion by reference to the demanding standard of justification required in relation to sexual orientation discrimination because of the detrimental impact on society and individuals of such discrimination (§143) and the fact that Cornerstone, although a religious organisation, was here concerned with the provision of a service to the public (§144). At §145 he stated that “although there were matters that the Judge should, I think, have placed on its side of the scales, the simple fact is that this was Cornerstone’s claim and its evidence, taken at its highest, fell short of discharging the burden upon it… in order to justify a policy of this nature, it needed to provide credible evidence that there would otherwise be a seriously detrimental impact on carers and children. The evidence it actually advanced did not go beyond the level of general assertion. In consequence, the Judge understandably found it impossible to conclude that the ability to discriminate against homosexuals was a matter of such importance to Cornerstone that, without it, the wellbeing of current and future carers and children would be seriously affected. He was entitled to treat assertions of the impact on carers as being at best inconclusive, and no attempt was made to prove any impact on present or future children. In short, while I would not rule out the possibility of an organisation in this position putting up a substantial evidence-based case on justification, Cornerstone simply did not do that, and its claim failed on the facts”.

Claimant: Aidan O’Neill QC and Ben Silverstone, instructed by Ai Law

Defendant: Sarah Hannett QC, instructed by Ofsted Legal Services