Unfair dismissal and religion again: Ferguson v Kintail Trustees

In Mr K Ferguson v Kintail Trustees Ltd & Anor [2021] ET 4103321/2020, the claimant was Director and Chief Executive of Kintail Trustees, a limited company that operates as the corporate trustee of the Robertson Trust, a charity. He was also an elder, the treasurer and a trustee of Stirling Free Church of Scotland [45].

Background

Kintail Trustees had about forty employees during the latter stages of his employment [25-28]. The aim of the Robertson Trust was to improve the wellbeing of people and communities affected by poverty and trauma and to realise the potential of people and communities in Scotland [32]. Its published Guidelines on grant-making included reference to the types of activity that it did not fund, including ‘Projects and activities which incorporate the promotion of political or religious beliefs….’ [35]. Kintail Trustees provided direct financial support under its Funding Policy to a wide variety of religious organisations, including the Church, and to political organisations for activities such as food banks and mother and toddler groups that did not promote their religious beliefs or political opinions, [36].

Mr Ferguson described himself as an evangelical Christian with orthodox beliefs: for him (and for the Free Church), marriage and ‘rightful sexual relations’ were solely heterosexual [46 & 47]. The second respondent, Ms Shonaig Macpherson, was the Chair of Kintail Trustees [29]. She was aware of Mr Ferguson’s views on sexual morality but did not share them [48 & 49].

Kintail Trustees redeveloped “The Barracks” in Stirling as a conference centre [52] and gave Stirling Free Church a 12-month Licence to Occupy in 2109 for an annual fee of £6,500 [78]. Mr Ferguson was not involved in granting the Licence, the level of the fee or its terms [79] but, evidently, Ms Macpherson had not known that the Church was taking up a Licence, was angry when she found out and assumed that Mr Ferguson had arranged it. She thought that it was a breach of the Trust’s Funding Policy [83] and believed that it could be detrimental to the Trust to be associated with the Free Church because of its views on same-sex marriage [84].

She told the Trustees what had happened, and the upshot was that Mr Ferguson was called before a disciplinary hearing and given a final written warning to last for 18 months [122-128]. He appealed and the duration of the final written warning was reduced to 12 months [135], but after further disputes as to his professional competence, he was dismissed. At no stage was he warned, formally or informally, about his performance or that it was regarded as a disciplinary matter [168 & 169]. His appeal against dismissal failed [173].

The judgment

The Tribunal pointed out that against the background of profound changes in law, ‘differences of belief between those at work are not straightforward to regulate. Both the claimant and the second respondent are each entitled to hold the beliefs that they do’ [295]. The questions for the two-stage assessment were: (i) could the Tribunal properly conclude from all the evidence that the claimant had established a prima facie case that the Trust had directly discriminated against him because of his beliefs or his association with the beliefs of the Free Church and, if so, (ii) had the Trustees proved that they had not discriminated against him, to any extent whatsoever, because of those beliefs? [297].

The Tribunal concluded that the claimant had been given no clear indication that concerns over his performance had reached the level of risking his future employment, that he had been given no formal or informal warning as to his performance and that the Trust had failed to carry out any process under its disciplinary policy [307]. Some of the criticisms had been justified and he was the Chief Executive – but Chief Executives were equally entitled to a fair process as other employees and the Code of Practice was not disengaged simply because of his role [312]. It concluded that no reasonable employer would have dismissed him in such way and that the dismissal was unfair under s.98(4) Employment Rights Act 1996 [315]. The majority concluded that he had established a prima facie case that none of the comparators would have been treated in the same manner and dismissed in the circumstances referred to [334]. The majority also concluded that the respondents had not discharged the onus on them [354]. The Tribunal did not, however, accept that there had been harassment of the claimant contrary to s.26 of the Act [357]. It concluded that Mrs Macpherson was also liable because she had acted in ways that amounted to a detriment [369].

The Tribunal dismissed the harassment claim against both respondents. It found in favour of the claimant’s unfair dismissal claim and, by a majority, for direct discrimination under s.13 Equality Act 2010 in relation to the dismissal itself. It also held that the claims against the second respondent under ss.109 and 110 and the claim in relation to the statement of particulars succeeded [372]. A remedy hearing would follow [373].

Cite this article as: Frank Cranmer, "Unfair dismissal and religion again: Ferguson v Kintail Trustees" in Law & Religion UK, 9 August 2021, https://lawandreligionuk.com/2021/08/09/unfair-dismissal-and-religion-again-ferguson-v-kintail-trustees/

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