The Court of Appeal takes on sexual orientation discrimination in R (Cornerstone Fostering) v Ofsted

How many appeal court judges does it take to find that a fostering agency which had a blanket ban on recruiting non-heterosexual carers was acting in a discriminatory manner?

It might sound like a joke but in the case of Cornerstone v Ofsted the answer was 3, plus a 47-page judgment…

Cornerstone are a faith based fostering agency in the North-East of England. Its foundational purpose is to recruit Evangelical (Christian) foster carers. All carers recruited by the agency have to sign a declaration to confirm that they will comply with an 11-point Code of Practice. Point 10 of this code states that they have to:

Set a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex.

OFSTED is the government agency which regulates the fostering sector. In June 2019 OFSTED published a report which assessed Cornerstone’s services as ‘inadequate’, largely because it contended the agency’s recruitment practices were discriminatory on grounds of sexual orientation. It issued a notice requiring Cornerstone not to unlawfully discriminate. This led to Cornerstone issuing a judicial review application seeking a quashing order against OFSTED’s notice.

The judicial review application was considered by the High Court in June 2020 and the Judge found that Cornerstone’s Code of Practice was discriminatory. Cornerstone appealed to the Court of Appeal. Their main argument was that whilst they acknowledged the Code of Practice may have discriminated towards gay foster carers, this was justified by the fact that Cornerstone is a religious organisation and its religious ethos and values are a fundamental part of its successful service provision and delivery in helping foster children with high levels of need.

This argument was not accepted by the Court of Appeal. According to the leading judgment of Peter Jackson:

“The argument has a certain logic: “We are entitled to discriminate against persons who are not evangelical Christians” therefore “Because homosexuality is unacceptable evangelical Christianity we are entitled to discriminate against homosexuals”. The difficulty with this logic is that it equates religious discrimination with sexual orientation discrimination in all circumstances when that is something that Parliament has not done.”

The judgment went on to find that the Code of Practice was not objectively justified. Whilst the Court of Appeal accepted that Cornerstone’s religious ethos may have helped it provide a difficult service it did not find that this justified the severe curtailing on the rights of others.

Cases involving the clash of rights between two protected characteristics are a key battleground in discrimination law which is likely to intensify as social groups become ever more legally assertive. The Court of Appeal in Cornerstone has given a useful reminder that the requirements of one protected characteristic will rarely justify directly discriminating against another.

This blog was prepared by Mark Alaszewski, Employment Solicitor at didlaw.