School chaplain was not discriminated against because of his religious belief after preaching that pupils did not have to agree with “LGBT ideologies”
Disciplinary action was taken because of objectionable manifestation of religious beliefs rather than the beliefs themselves.
We are seeing an increasing number of queries from employers about cases where there is a perceived clash of protected characteristics in the workplace. The employment tribunals too are dealing with what seems to be a rise in employees bringing claims alleging they have been subjected to religious or philosophical belief discrimination by being disciplined for expressing their views, including in relation to same sex marriage and trans rights.
We reported in 2021 on the significant decision of the EAT in Forstater v CGD Europe and others (available on our website: Claimant's gender-critical belief is protected under the Equality Act). This decision made clear that a belief that people cannot change their sex can be a protected philosophical belief.
Religious or philosophical beliefs are protected only if they are: genuinely held; a belief rather than an opinion or viewpoint; relate to a weighty and substantial aspect of human life and behaviour; are cogent, serious, cohesive, and important; are worthy of respect in a democratic society; are not incompatible with human dignity; and do not conflict with the fundamental rights of others.
In Forstater, the EAT stated that only beliefs that would be “an affront to [European Convention on Human Rights (ECHR)] principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms” will be such as are not worthy of respect in a democratic society. Beliefs which are “offensive, shocking or even disturbing to others” are not excluded from protection.
In schools and other organisations with a religious ethos, conflict may arise when communicating orthodox faith teachings on marriage, sexuality and gender, while pursuing policies which aim to ensure that differences are tolerated and celebrated, and that LGBT people are protected and valued.
A recent employment tribunal case is useful in illustrating how tribunals will approach religion and belief discrimination cases. In particular, the distinction to be made between detrimental treatment because of the way beliefs are manifested, and that which is simply because the employee holds the beliefs.
Case details: Randall v Trent College
Dr Randall was a school chaplain at Trent College, an independent school which was established with the object of the advancement of education in accordance with the principles of the Church of England.
In 2016, Dr Randall preached a series of sermons to Years 7 – 13, focusing on gender equality, same sex marriage and LGBT rights. The tribunal noted that these sermons “strongly implied that it is sinful to alter the body given by God, implied that marriage can only be between a man and a woman and that family works best when a woman, with her tone of voice, looks after the children”, had an underlying message that homosexuality is sinful, and stated that those who believe same sex marriage is right were in the minority globally.
A number of complaints were received from pupils, parents and staff. These concerns were shared with Dr Randall, in particular the potential distress and harm which could be caused to vulnerable LGBT pupils by delivering these messages in a Chapel sermon. He was asked to avoid “anything controversial” in his sermons in future.
In 2018, the school began to use the Ofsted and Department for Education recognised programme, “Educate and Celebrate”. This was a whole-school approach to “tackling homophobic, biphobic and transphobic bullying and ingrained attitudes in schools”. Dr Randall strongly opposed this programme. He expressed his concerns and was encouraged to share his views on the programme, but he was not included on the Educate and Celebrate steering group.
In 2019, Dr Randall delivered a further series of sermons on the theme of “competing ideologies”. The sermons stated that pupils did not have to accept the ideas of “LGBT activists”, that some LGBT activists “happily lie” about gender identity being a protected characteristic, and that no one had the right to tell pupils to lie – that was “the tactic of totalitarianism and dictatorship”.
After complaints were raised about the first sermon to Years 7 and 8, Dr Randall was asked to moderate the next sermon. However, Dr Randall delivered much the same sermon to the other year groups two days later.
An unprecedented number of complaints from pupils and staff were received. A pupil commented that: “Some people listening might be coming to terms with their sexuality. They may now think they’re not ‘right’ or may feel even more uncertain. People might also feel afraid to come out. It creates a hostile environment.”
When asked for his reflections on the complaints, Dr Randall stated that he took his authority from Canon Law and that he had said nothing that was not true and in line with church teachings. He blamed the introduction of Educate and Celebrate for the situation the school was facing. He showed no regret that his sermons had caused distress.
Dr Randall was suspended and a disciplinary investigation took place into allegations that he had delivered sermons which caused distress to pupils and staff and that he had disregarded advice from senior pastoral staff about the content of the sermons.
Following a disciplinary hearing, Dr Randall was summarily dismissed for gross misconduct. The reasons for dismissal included that Dr Randall had, despite advice, preached sermons which might have caused harm to pupils and were too complex for the age groups concerned, had undermined school policies and initiatives, had preached a message which was not in line with the school’s obligations under the Education (Independent School Standards) Regulations 2014 (ISSR) to promote respect for others and to have particular regard to the protected characteristics in the Equality Act, had not shown empathy for pupils and staff, and risked damaging the reputation of the school. Issues such as those in the sermons should have been addressed in class, rather than in chapel where there was no time or room for discussion or questioning.
After seeking advice from the Local Authority, the school made a referral to Prevent on the basis of Dr Randall’s anger about Educate and Celebrate, his entrenched views, his lack of empathy for pupils, his lack of reflection or regret, and his belief that Canon Law took precedence over pupil welfare. Prevent considered that there was no risk of radicalisation and did not take the referral further. The school also referred Dr Randall to the Local Authority Designated Officer, but received no feedback on this referral.
Dr Randall appealed against his dismissal and a decision was taken to downgrade the sanction to a final written warning as he had not received any formal warnings for earlier incidents. His return to work was subject to adherence with a number of management instructions.
During the height of the Covid pandemic, the school decided to furlough a large number of staff. It then undertook restructuring and redundancy consultations based on the financial situation of the school. As part of these, and following a review of faith provision in the school, Dr Randall was dismissed on the ground of redundancy.
He brought a number of claims to an employment tribunal, including direct religious belief discrimination, harassment, victimisation and unfair dismissal. He also alleged that his rights to freedom of thought, conscience and religion and to freedom of expression under the ECHR had been unlawfully interfered with. There was no dispute in this case that Dr Randall’s beliefs were protected under the Equality Act.
Objectionable manifestation of beliefs
Case law shows that a crucial question when considering direct religion or belief discrimination claims, in the light of human rights law, is whether the treatment in question was because of the belief itself (which would be unlawful), or because of the way in which the claimant manifested their belief.
The tribunal judgment sets out very clearly the questions to be asked in cases of this kind:
- Was the reason for the treatment the Claimant’s beliefs or their manifestation of those beliefs?
- If the reason for the treatment arose from the manifestation of the Claimant’s beliefs, was the manifestation of those beliefs the reason for the treatment, or was the reason the particular way in which the Claimant manifested their beliefs?
- If the reason for the treatment was the way in which the Claimant manifested their beliefs, was the employer’s objection to that manifestation justified? (There is no justification defence to a direct discrimination claim, but this consideration of justification follows from a requirement on the tribunal to interpret the Equality Act in a way which, so far as possible, is compatible with the ECHR.)
In this case, the tribunal found that the school’s treatment of Dr Randall had not been because of his beliefs. The reason for the treatment was the objectionable way in which Dr Randall had manifested his beliefs.
The tribunal found that Dr Randall’s human rights had not been infringed, as any interference with those rights had been justified in meeting the school’s legitimate objectives. The tribunal took into account the obligations on the school to comply with the ISSR, particularly the requirements to encourage respect for other people, paying particular regard the protected characteristics, and to deliver education in an age-appropriate manner. It also took into account the paramount obligation on the school to safeguard its pupils.
Dr Randall’s other claims were also dismissed. This is a first instance decision of the employment tribunal and may be appealed.
It is by no means easy for organisations to deal with cases where the expression or manifestation of protected beliefs by one individual may pose a risk of harm to staff or beneficiaries, including children and vulnerable people. Strength of feeling on both sides is perhaps more likely to lead to complaints and claims, and it can be very difficult for senior managers to navigate between what appear to be competing protected characteristics.
It is important to be clear that staff should not be subjected to a detriment or dismissed for holding a particular protected belief. However, where it is justifiable to object to the way in which the belief is manifested, employers should take steps to protect those who may be harmed by that manifestation and to make clear that such conduct is contrary to the employer’s values and policies.
Employers should have clear, accessible policies which help staff to understand the aims behind those policies and the values or legal obligations they are seeking to uphold. Regular training should be undertaken to communicate those policies, aims and values. Clear reference should also be made to these policies when discussing issues with staff in performance management and in any disciplinary proceedings. Taking these steps should assist in lowering the risk of claims and in defending such claims as are brought.
How Wrigleys can help
The employment team at Wrigleys is expert in helping education, charities and third sector clients with complex employee relations, including allegations of discrimination and unfair dismissal.
We can also help by reviewing your contracts and policies so that problems are dealt with promptly and fairly and tribunal claims less likely to arise.
Importantly, we work within the wider charities, social economy and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ wider governance and regulatory obligations, and their relationships with key stakeholders and funders impact on employment processes and decisions. Our wider team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk.
If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or any other member of the employment team on 0113 244 6100.
You can also keep up to date by following Wrigleys employment team on Twitter
The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.