Christian claims discrimination 'on grounds of religion'

Mark Sheridan, a churchgoer of 20 years standing, is at at employment tribunal in Abergele, Wales this week, supported by the British Humanist Association would you believe. He is claiming religious discrimination against him and constructive dismissal by his employers, Prospects. He says he was forced as a manager to tell non-Christians they could not be promoted because of their lack of faith, and this made his job impossible. This is a landmark case that will test in the courts for the first time the legislation that permits this kind of thing, the Employment Equality (Religion or Belief) Regulations 2003. Today his entire witness statement was read out in court, and I've reproduced it below. You can also read our story at Times Online about this complex but interesting case. The other claimant in the case, Louise Hender, is represented by her union, Unison. She is a non-Christian also claiming religious discrimination. Peter Kirk at 'Gentle Wisdom' has done an interesting commentary on the case.

IN THE EMPLOYMENT TRIBUNAL Claim Nos. 2901366/2006
SHREWSBURY & 2902090/2006
BETWEEN:
(1) MARK SHERIDAN
(2) LOUISE HENDER
Claimants
-and-
PROSPECTS FOR PEOPLE WITH LEARNING DISABILITIES
Respondent
OPENING SUBMISSIONS ON BEHALF OF MR SHERIDAN
A. Introduction
1. These opening submissions are presented on behalf of Mr Sheridan, the First Claimant in
this matter. Following a Pre-Hearing Review held on 30 April 2007, the Tribunal ordered
Mr Sheridan’s case to be combined with that of Mrs Hender, the Second Claimant. The
claimants are separately represented, but there is considerable overlap between their
claims.
2. Accordingly, in so far as they relate to his claims against the Respondent (“Prospects”), Mr
Sheridan commends and adopts the opening submissions prepared on behalf of Mrs
Hender.
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B. The issues relating to Mr Sheridan’s claim
3. The issues to be determined by the Tribunal were identified (at the Case Management
Discussion on 25 June 2007) to be those agreed by the parties and set out in the letter to the
Tribunal dated 22 June 2007. In the case of Mr Sheridan, it is not in dispute that:
(1) The Respondent has an ethos based on Christianity;
(2) At the material time it was the Respondent’s policy not to appoint or promote
anyone who was not a practising Christian (other than to the posts of cook, gardener,
cleaner and maintenance assistant) (“the recruitment policy”);
(3) Mr Sheridan was required to adhere to the above policy.
4. The issues to be determined are as follows:
(1) Did the Respondent treat Mr Sheridan less favourably than other persons on
grounds of religion or belief by subjecting him to a detriment (namely requiring him to
adhere to the recruitment policy)?
(2) If so, having regard to the Respondent’s ethos and to the nature of the
employment or the context in which it is carried out:
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a. Was being a practising Christian a genuine occupational requirement
(“GOR”) for all positions within the Respondent other than cook, gardener,
cleaner and maintenance assistant?
b. Was it proportionate to apply that requirement in every case?
(3) Did the Respondent’s actions amount to a fundamental breach of Mr Sheridan’s
contract of employment?
(4) Did Mr Sheridan resign in response to any such breach so that he should be
regarded as constructively dismissed?
5. At the Case Management Discussion held on 13 December 2006, the Respondent conceded
that in the event the Tribunal were to find that Mr Sheridan had been constructively
dismissed then that dismissal would be unfair.
6. Mr Sheridan no longer pursues his additional claim that his treatment by Prospects was
indirectly discriminatory.
C. The factual background
7. Mr Sheridan was employed by Prospects from January 1998 until 30 April 2006. Initially
employed as a relief and voluntary support worker with the Respondent’s Day
Opportunities service in Conwy, he subsequently became a manager in August 2003 and
Service Manager in April 2005.
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8. Mr Sheridan is a Christian and has attended church regularly for over 20 years. He was
attracted to the job by the Christian ethos of Prospects and by the person-centred approach
to the people supported. Mr Sheridan enjoyed his work and was successful at it.
9. As the Day Opportunities service expanded in Conwy, Mr Sheridan found it increasingly
difficult to recruit sufficient staff to meet demand. He was told that whilst a service was
growing, Prospects’ practice was to meet staffing needs through the use of relief workers.
At the time it was not a pre-requisite for relief workers to be Christian, although they did
need to indicate that they were sympathetic to the ethos of the charity. In time, relief
workers were offered permanent contracts, and in addition, a number of non-Christian
staff transferred to Prospects by operation of TUPE. As a result the staff team became a
mixture of Christian and ethos-sympathetic staff and volunteers. This did not detract from
the service offered to the people supported, who came from all backgrounds and were not
necessarily Christian or from Christian families.
10. In October 2004 Mr Sheridan attended a meeting for the management team of Wales and
the Marches region. At the meeting Paul Ashton, Prospects’ chief executive, discussed the
effect of the forthcoming regulations outlawing discrimination on the grounds of religion
or belief. He explained that in order to comply with the legislation, Prospects would have
to demonstrate its Christian credentials. It was clear that this would entail tightening up
the recruitment policy so that thereafter only practicing Christians could be employed or
promoted within Prospects. The only exceptions would be for cooks, gardeners, cleaners
and maintenance assistants.
11. Mr Sheridan was deeply concerned by this development. It would make recruitment
extremely difficult, impacting on the quality of service that could be offered to the people
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supported. It would also make his existing non-Christian staff feel devalued and
unwelcome. However, Mr Sheridan took some comfort from a discussion with his line
manager, who assured him that Level 1 staff at least would be secure in their jobs, whether
or not they were Christian.
12. In September 2005 Mr Sheridan impulsively tendered his resignation. The recruitment
situation was so bad that he had been forced to make cutbacks in the services offered. He
felt that all that his team had worked so hard to achieve was being reversed. After a short
period of reflection, however, he asked if he could retract his resignation. He had devoted
six years of his life to the service, and felt ill at the thought of not being part of it. Prospects
agreed to let him continue in his role.
13. Although determined to make a fresh start, Mr Sheridan found the same problems
confronting him on his return. His health began to suffer; after referral by his GP he was
diagnosed with a stress related illness. He knew that he would shortly be asked to begin
the process of recruiting Level 2 Support Workers, but was aware that only committed
Christians could be considered for these roles. This meant that highly capable members of
his staff, who had in any event been acting up in these roles, would not be eligible for
promotion. The only reason for this was that they were not Christian.
14. On 18 January 2006 Mr Sheridan asked to speak to the executive team, Paul Ashton and
Rose Marie Edwards, who were visiting Conwy Day Opportunities. Mr Sheridan
explained the difficulties he was facing, but it was clear that the situation would not be
resolved. As a consequence, by letter of 23 January 2006 Mr Sheridan again tendered his
resignation. This time it was a considered decision. He had struggled with his conscience
and with the difficulties confronting him for a considerable period of time, but it was now
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clear that the rigid application of Prospects’ recruitment policy made it impossible for him
to continue. He quite properly agreed to remain for a reasonable period of time so that he
could hand over to a successor, and in the event his last day of employment was 30 April
2006.
15. Subsequently Mr Sheridan presented a claim to the Tribunal alleging constructive unfair
dismissal. After a PHR on 30 April 2007 he was allowed to amend this claim to include a
complaint that he had also been subjected to discrimination contrary to the Employment
Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”).
D. Submissions
Discrimination on grounds of religion or Belief
16. Mr Sheridan adopts the legal principles outlined at paras 20-42 of the opening submissions
prepared on behalf of Mrs Hender. The only difference between the claimants in this
regard is in the application of these principles to the particular facts of each case.
17. The principal difference relates to the application of Regulation 3(1)(a) of the 2003
Regulations to Mr Sheridan. Whereas Mrs Hender was subjected to less favourable
treatment by Prospects on the grounds of her religion or belief, Mr Sheridan was subjected
to less favourable treatment on the grounds of the religion or belief of third parties (namely
the non-Christians who he was not allowed to employ or promote).
18. That this form of less favourable treatment is prohibited by the 2003 Regulations is
apparent from Regulation 3(2) of the 2003 Regulations. This provides that the “grounds of
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religion or belief” referred to in Regulation 3(1)(a) “does not include A’s religion or belief”
(where A, in this case, is Prospects). The clear inference is that it may include the religion
or belief of B (in this case Mr Sheridan), or of C (the third parties). This is also consistent
with authority under different discrimination regimes which makes clear that an employee
who is instructed by his employer to discriminate against a third party on prohibited
grounds is himself directly discriminated against: see for example Weathersfield Ltd v
Sargent [1999] IRLR 94 (CA), and Redfearn v Serco Ltd [2006] IRLR 623 (CA).
19. Mr Sheridan brings his claim under Regulation 6(2)(d) of the 2003 Regulations, which
renders it unlawful to discriminate against a person on the prohibited grounds, “by
dismissing him, or subjecting him to any other detriment”. In this case, in addition to the
dismissal, Mr Sheridan suffered considerable detriment in being forced to operate under
the recruitment policy for a prolonged period of time. As his witness statement makes
clear, this caused substantial injury to his feelings and even physical ill-health.
20. A further factor distinguishing Mr Sheridan’s case from that of Mrs Hender is that, to
succeed in its defence, Prospects will have to show that the GOR applied not just to the
Level 2 Support Worker position (to which Mr Sheridan was not entitled to promote Mrs
Hender), but also to all the Level 1 Support Worker positions in Conwy Day
Opportunities. This is because Mr Sheridan was prevented from appointing non-Christians
to any of these roles.
21. It is submitted that, having regard to the narrow construction which the Tribunal is
obliged to place on the GOR defence, and to the requirement of proportionality, Prospects
will not be able to meet this test. In particular, Prospects was apparently content that its
ethos would not be undermined by the presence of (i) a significant number of non8
Christian staff who TUPE-transferred into the organisation; (ii) non-Christian relief
workers who were subsequently offered permanent contracts; and (iii) non-Christian
agency workers. Given this, it is hard to see how Prospects can properly contend that the
presence of any non-Christian Level 1 Support Workers would materially undermine its
ethos.
22. Further, Prospects was prepared to allow non-Christian Level 1 Support Workers (such as
Mrs Hender) to remain in post (although they would not be considered for promotion). No
criticism is made of Prospects for not dismissing non-Christian workers in these
circumstances, but the fact that it didn’t dismiss these workers reflects the reality: that it
was not a GOR that Level 1 Support Workers (at least) be Christian.
Unfair Dismissal
23. In relation to his claim for unfair dismissal, Mr Sheridan adopts the legal principles
outlined at paras 45-50 of the opening submissions prepared on behalf of Mrs Hender.
24. In so far as these relate to Mr Sheridan’s case, it is submitted that Prospects’ insistence that
Mr Sheridan rigidly apply the recruitment policy, despite the pronounced difficulties he
faced and the long-standing relationships he had developed with the non-Christian
members of his team, constituted a clear breach of the implied term of trust and
confidence. Mr Sheridan was entitled to accept this breach by resigning from his
employment. In the circumstances his dismissal was plainly unfair.
E. Conclusion
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25. For the reasons set out above, the Tribunal is requested to find that:
(1) Mr Sheridan was discriminated against on the grounds of religion;
(2) Mr Sheridan was unfairly dismissed.

Comments

[Dr. Irene Lancaster FRSA]

Jewish humour, that is all!

[joe]

I don't understand your point Irene.

The arguement of "genuine occupational requirement" is reasonable for religious positions; would anyone in his right mind believe a Catholic could become Jesus?

Please explain.

[Dr. Irene Lancaster FRSA]

The quip about the Chief Rabbi is interesting. Just replace that phrase with the term 'Jesus' and you'll see what I mean.

A joke I heard at Haifa University today from an MA student who came here from Russia in 1990, aged 9

Two Russian women meet in the market. One is in shock.

'Have you heard the dreadful news that I can't even bring myself to mention?'

'You mean that Our Lord was J...Jewish?

I know, it's unspeakable isn't it.

But never mind. At least he died knowing that he was a good member of the Orthodox Church'.

True story, apparently.

[Mike Homfray]

I see no reason at all why this sort of service should be included in posts which are exempt from anti-discrimination laws.

There is nothing distinctly religious about these roles.

[Robin Bather]

This is indeed an interesting case that requires some analysis before giving an opinion.
It would appear that the Employment Equality (Religion or Belief) Regulations 2003 was designed to protect the rights of any person whatever their belief or religion (and, I trust, the rights of those who have no religion, like me) which seems fair.
However this case seems to be the reverse case, namely, that someone's rights are not protected by not adhering (or not wanting to apply the rules which demand adherence) to religious requirements.
The arguement of "genuine occupational requirement" is reasonable for religious positions; would anyone in his right mind believe a Catholic could become the Chief Rabbi?
But this is patently not the case. This admirable organization is devoted to helping people with learning disabilities. Admirable!!!
However the non employment of those who are not Christians smacks of giving the impression that Prospects believes that a non Christian is unable to share their fine ideals.
They don't say so, but the message is clearly there.
It offends me.
I hope Mark Sheridan wins this case.