Balancing act: religious freedom and anti-discrimination in fostering recruitment

The High Court has ruled that an independent fostering agency’s policies for recruiting carers was unlawful on the grounds that it discriminated against gay men and lesbians.

The case concerned Cornerstone, an independent fostering agency, which sought judicial review of an unpublished Ofsted report. Cornerstone is an evangelical Christian adoption and fostering agency. Although it is privately operated, it is a “hybrid” public authority providing a public service to adults seeking to foster or adopt and to children who are in need of fostering or adoption. Some local authorities have also contracted out to Cornerstone their duties to recruit foster carers and place children.

Cornerstone required carers to maintain personal devotion to Christianity. Its Code of Practice required carers to “set a high standard in personal morality” including by abstaining from “sexual sins” such as “homosexual behaviour and wilful violation of [carers’] birth sex.”

In its report, Ofsted alleged that Cornerstone’s recruitment policy required carers to be practising Christians in opposite sex marriages and, as a result, violated the Equality Act 2010 and Articles 8 and 14 of the European Convention on Human Rights (ECHR).

Cornerstone countered that its requirement that carers be practising Christians was essential to the continuation of its work.  It recruited many carers who would not otherwise have fostered but for the positive influence of the church community. Further, it argued its policies were focused on preventing homosexual behaviour, not homosexual orientation, which was not discriminatory.

In his judgment, Knowles J noted that, as a religious charitable organisation, Cornerstone was permitted to discriminate on grounds of religious belief by an exception in the Equality Act. However, there must be a fair and proportionate balance between religious freedom and anti-discrimination. Discrimination may be permitted on religious grounds – but not to the extent that it relates to acts carried out on behalf of a public authority which are discriminatory on the grounds of sexual orientation. Ofsted was therefore right to conclude that Cornerstone’s blanket exclusion of gay and lesbian individuals from being carers violated the ECHR.

It is clear that the court is attempting to tread a fine line between religious freedom and the hard-fought rights of gay and lesbian would-be parents. Importantly, it makes clear that it is no defence to attempt to distinguish between sexual behaviour and sexual orientation. This case nevertheless leaves open the possibility of a private organisation (i.e. not acting on behalf of a public authority) discriminating against carers on the basis of sexual orientation.

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Claire McKee

About Claire McKee

Claire is an associate in the People, Reward and Mobility practice. Whilst advising employers and employees on a wide range of employment issues, Claire focuses on advising clients on contentious employment, discrimination and equal pay matters. She appears before the Employment Tribunal in Scotland and England on a regular basis.

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