Recent case finds charity’s policy discriminates unlawfully

Published 16 July 2020

The case of R (Cornerstone (North East) Adoption and Fostering Service Ltd v Ofsted [2020] EWHC 1679 (Admin) was decided last Friday 10 July. In very brief summary, the High Court held it was unlawful for a charitable adoption and fostering agency to accept only heterosexual evangelical Christians as the potential carers of fostered children. The claim arose because Ofsted had concluded that the charity’s recruitment policy violated various provisions of the Equality Act 2010 (EA 2010) and the Human Rights Act 1998 (HRA 1998). The charity sought to judicially review Ofsted.

The Court decided – among other things - that:

• The charity’s recruitment policy was not unlawful insofar as it requires carer applicants to be evangelical Christians.
• But it was unlawfully discriminatory under the EA 2010 and in breach of Articles 8 and 14 of the Convention insofar as it required applicants to refrain from ‘homosexual behaviour’.
• Schedule 23 of the EA 2010 provides a general exemption for organisations relating to religion or belief in respect of discrimination on grounds of religion or belief but not in respect of discrimination on grounds of sexual orientation where the organisation performs functions on behalf of public authorities pursuant to contract, as the charity in this case did (see Sch 23 para 2(10)).
• The general charitable exemption in section 193 of the EA 2010 for discrimination in the provision of benefits in pursuance of a charitable instrument where this is a proportionate means of achieving a legitimate aim (or for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic) did not apply as on the evidence the charity’s policy was disproportionate to its articulated aims.