Background

The Revd David Green was an assistant curate in deacon’s orders at St Bartholomew, Longnor, in the Diocese of Lichfield. He brought a claim against the Diocesan Board of Finance and the Bishop for detrimental treatment and discrimination. His primary complaint was that the Bishop had made an unreasonable decision not to ordain him to the priesthood.

A preliminary case management hearing in July 2023 before Employment Judge Slater, Reverend D Green v Lichfield Diocesan Board of Finance [2023] UKET 2409635/2022, had been primarily about whether he had the status to enable him to bring complaints of detrimental treatment as a result of making protected disclosures (“whistleblowing”) under the Employment Rights Act 1996 [‘ERA’] and of disability discrimination under the Equality Act 2010 [‘EqA’] based on a perception that he was disabled by reason of autism [1 & 2]. He claimed, inter alia, that he had suffered the detriment of refusal to ordain him as a priest as a result of making a public interest disclosure [3].

EJ Slater concluded that the definition of “worker” in the ERA should be read in the extended way set out in Gilham v Ministry of Justice [2019] UKSC 44, giving Mr Green the right to continue with his complaints of detrimental treatment on the grounds of making protected disclosures [113]. However, she also concluded that the Convention rights to freedom of expression and non-discrimination under Articles 10 and 14 ECHR were not potentially engaged [115].

At a further case management hearing before Employment Judge Howard in November 2023, the Bishop of Lichfield was added to the proceedings as Second Respondent.

The issues at the substantive hearing

In Mr David Green v The Lichfield Diocesan Board of Finance (Incorporated) & Anor [2025] UKET 2409635/2022, before a panel consisting of Employment Judge Cowx, Ms Judith Williamson and Mr Brian McCaughey, the tribunal set out the  issues to be decided as follows:

• Was either the first Respondent (‘R1’) or the second Respondent (‘R2’), Mr Green’s “employer” under s.230(3)(b) ERA (applying the “Gilham extension”)?
• Was either R1 or R2 a “relevant person” in relation to a personal office for the relevant “matter” for the purposes of ss.49 and 52(6) EqA? [3.1].
• Were any of the alleged whistleblowing detriments out of time? [3-6].
• Were the alleged detriments under the EqA out of time? [7-8].
• Did Mr Green, in fact, make the alleged whistleblowing disclosures and, if he did so, was it his belief that they disclosed criminal offences or a failure to comply with a legal obligation reasonable, and did he make the disclosures in the public interest? [9-28].
• Had Mr Green been subjected to the detriments alleged and, if so, had they been acts or deliberate failures to act by the DBF or the Bishop? [29-48].
• Whether he had been subjected to a detriment by the act or the failure to act, and whether it had been on the ground that he had made one or more of the protected disclosures? [29-48].

Mr Green’s case was that he was not disabled and that he had been discriminated against because of the (inaccurate) perception that he was disabled by reason of an autism spectrum condition [48]. Therefore:

• Did either respondent perceive that Mr Green had a physical or mental impairment?
• If so, did either perceive that impairment to have an adverse effect on his ability to carry out normal day-to-day activities, and if so, did they perceive any such adverse effect to be substantial and likely to last for at least 12 months or for the rest of his life (within the meaning of paragraph 2, Part 1 Schedule 1, EqA)? [49].

The judgment

As to the alleged protected disclosures, the tribunal held that Disclosures 2, 5, 6, 7, 9 and 11 met the statutory definition of a protected disclosure under s. 43A ERA 1996, but the remainder did not. [6.190]. As to the alleged detriments, Mr Green’s priesting had been delayed due to legitimate concerns by the Bishop of Lichfield and his team within the Diocese that he was not meeting the Formation Criteria and posed a safeguarding concern [6.199]. Of the claimed detriments, only Detriment 20 – the Respondents’ decision not to ordain him as a priest and, as a consequence, not to give him a tenured post – was an actual detriment. However,

“There was no causal link between that decision and any of the proven or unproven protected disclosures. The decision taken was entirely reasonable in the circumstances which were that had [Mr Green] failed to meet the required standards and so could not be signed off as passing his curacy. All of the whistleblowing claims therefore fail” [6.346].

As to direct discrimination, Mr Green’s case was that though he is not disabled, he was directly discriminated against by those who perceived that he had a disability [6.347] and he asserted that, at a meeting in  July 2021, the Bishop of Stafford had made it clear to him that he wanted him to seek comprehensive autism testing prior to being priested [6.351]. There was nothing in the reports on Mr Green which suggested that undiagnosed autism was having a substantial impact on him [6.352]:

“At most, the Bishop of Stafford thought that [he] was unwell at the time. He believed that if [he] was diagnosed as autistic, then reasonable adjustments could be made for him. The willingness to make such adjustments is not a recognition that a person has a disability” [6.353].

In his statement to the tribunal, the Bishop of Stafford had written:

“If the Claimant had an autistic spectrum condition (or some other condition) we might have needed advice on how to help him do his job. We do have a number of clergy in the Diocese who identify as having an autism spectrum condition, as well as several with dyspraxia and dyslexia, so the concept of making reasonable adjustments is familiar to us” [6.360].

The Bishop of Stafford was under a duty to the Church of England and to the general public to ensure that great care was taken before signing off any deacon for ordination as priest. Rather than abusing his power and exercising it arbitrarily, he was attempting to achieve an appropriate balance between the needs of Mr Green and those of the Church and the public [6.364]. Therefore, Mr Green had not been directly discriminated against because he did not suffer any less favourable treatment [6.365]. The remaining direct discrimination claims were also dismissed, and the claim failed [6.375].

Madeleine Davis suggests in the Church Times that this is the first case in which a member of the clergy has been held to have “worker” status for the purpose of a whistle-blowing detriment claim.