Christian CEO wins religious discrimination claim against Robertson Trust

• Employment Tribunal rules that Kenneth Ferguson was unfairly dismissed by The Robertson Trust and subjected to religious discrimination by the Trust and its Chair, Shonaig Macpherson.
• Tribunal will hold a further hearing to assess the amount of damages which the Trust must pay to Ferguson.

An Employment Tribunal has ruled that Scotland’s biggest grant-making trust unlawfully discriminated against its CEO because of his Christian views on marriage.

The Robertson Trust awards more than £20 million a year to good causes. Kenneth Ferguson was CEO from 2011 to 2020, overseeing a doubling of the Trust’s giving, and an increase in staffing from 7 to 43.

Ferguson is an elder at Stirling Free Church, which believes that marriage is between one man and one woman, and it was his association with this church and its beliefs that led to his dismissal.

Ferguson was dismissed in March 2020 after Shonaig Macpherson learned that Stirling Free Church was hiring premises from the Trust. Macpherson disagreed with the church’s views on same-sex marriage. The Tribunal found Macpherson was “appalled” that the church had been allowed to meet on Trust premises and was so angry that her voice was shaking. She made repeated negative reference to the church’s views on same-sex marriage in communications with staff and other trustees.

Macpherson claimed the Trust had a ‘neutrality’ policy of not renting to organisations that promoted religious or political views but the Tribunal found that the Trust “did not have any specific written policy with regard to renting or providing a licence to occupy to third parties” [para. 38 of judgment]. It also found that the Trust rented premises to Stonewall and other groups which support same-sex marriage [see para. 40 of the judgment].

The Tribunal said:

“The impression was of [Macpherson] seeking to find reasons to justify dismissal, that that decision in her mind had been taken well before 16 March 2020 and explains why she did not take the trouble to read the disciplinary procedure she had send the claimant in November 2019, to have a formal investigation, or attach any supporting material to the letter of 12 March 2020. The inference that the majority draws is that the issue of [Kenneth Ferguson’s] beliefs remained one that was one of the reasons for that decision to dismiss.”

Kenneth Ferguson said today:

“I’m just relieved this is over. It’s been a very difficult time for me and my family. I was treated by The Robertson Trust in a way I had never been treated before in my whole professional life. But I’m satisfied that justice has been done. The Tribunal has ruled that they were wrong to behave that way and I’m grateful.”

“I also want to thank those who have supported me and prayed for me, especially those at The Christian Institute who have been such a blessing to me.”

Simon Calvert, spokesman for The Christian Institute, said:

“We are very pleased with this clear Tribunal ruling in Kenneth Ferguson’s favour. The Tribunal ruled that he was a victim of religious discrimination and unfair dismissal at the hands of The Robertson Trust and its Chair, Shonaig Macpherson.

“In particular, as evidence of religious discrimination, the Tribunal highlighted Ms Macpherson’s angry reaction to the beliefs of Kenneth and his church about marriage.

“This ruling is a welcome re-statement of the principle, upheld again and again in the courts, that the Christian belief that marriage is between a man and a woman is a belief protected by equality law and worthy of respect in a democratic society. This is a just outcome and one which sounds a warning to those who think they can mistreat Christians in the workplace.

“There will be a further hearing to determine the amount of damages which The Robertson Trust will have to pay Mr Ferguson.”

“The Christian Institute has had the privilege of supporting Kenneth throughout this battle and underwriting his legal costs via our Legal Defence Fund.”

NOTES FOR EDITORS:

Extracts from the judgment
[Click here to download the full 133-page judgment]

• “That protected belief was his actual belief, or association with a Church which believes, that marriage is exclusively between a man and woman, and that rightful sexual relationships are between men and women. It was trite that it is lawful to hold such beliefs and to express them.” [Para. 188]

• “… the Tribunal… finds in favour of the claimant on the claim of unfair dismissal under the Employment Rights Act 1996 and by majority for direct discrimination under section 13 of the 2010 Act, that being in relation to the dismissal itself. It also finds that the claims that arise against the second respondent [Shonaig Macpherson] under sections 109 and 110, and the claim in relation to the statement of particulars, as having succeeded.” [Para. 372]

• “The impression was of the second respondent seeking to find reasons to justify dismissal, that that decision in her mind had been taken well before 16 March 2020 and explains why she did not take the trouble to read the disciplinary procedure she had send the claimant in November 2019, to have a formal investigation, or attach any supporting material to the letter of 12 March 2020. The inference that the majority draws is that the issue of [Kenneth Ferguson’s] beliefs remained one that was one of the reasons for that decision to dismiss.” [Para 354 (m)]

• “She referred on a number of occasions in messages that day to the beliefs of the Church when, as stated above, on her argument as to neutrality, the content of those beliefs was not relevant to neutrality. If the position was as she claimed, one would have expected her only to have mentioned that the premises were to be used for religious worship or instruction, not the beliefs themselves.” [Para 354(c)]

• “Taking account of all of the evidence the majority of the Tribunal concluded that the evidence of the second respondent [Shonaig Macpherson] was not sufficiently reliable to hold that the first respondent [The Robertson Trust] had discharged the onus on it. The conclusion was formed in part by the manner in which she gave her evidence, the lack of detail in her witness statement and candid inclusion of material facts, and the lack of supporting written evidence provided. The second respondent sought to deny some of the facts, and to downplay her reaction to discovering the fact of the Licence, and was not as candid as the Tribunal would expect of a witness before it. The issue of the beliefs of the claimant and Church with which he was associated had been in the mind of the second respondent on 8 November 2019 and the majority of the Tribunal considered that they remained to the point of dismissal. The evidence to establish performance being of such a level as justifies dismissal was not sufficiently established. To that is added the very unusual process, contrary to the first respondent’s own procedure, that led to dismissal. Individually there were in many respects steps taken which were not the normal steps to take and although by itself that is not determinative by any means collectively the picture painted is a suspicious one, where there is the ability to secure dismissal when that was not achieved by the first disciplinary process. That was all in circumstances of the second respondent’s comments on the issue of beliefs referred to. It was never properly explained why the dismissal process was undertaken in that manner, and with such apparent urgency, by the second respondent in such stark contrast to the first disciplinary process.” [Para. 355]

Evidence quoted in the judgment

• Message between Trust staff about Shonaig Macpherson’s reaction to the idea of the church using trust premises:

“She is appalled at the idea of the Free Church using a Trust space & Kenneth’s role in facilitating it.” [Para. 89]

• Email from Shonaig Macpherson to other trustees:

“Some of you may be familiar with the views of the Free Church in relation to homosexuality and gay marriage.” [The arrangement with the Church] “does not fit with the Robertson Trust’s values and will offend staff, grant holders and stake holders generally as well as harming our reputation.” [Para 92]

• April 2019 appraisal of Kenneth Ferguson by The Robertson Trust Chair, Shonaig Macpherson:

“Engaging, optimistic, values driven individual who fulfils an excellent role as an ambassador for The Robertson Trust, recognised as a thought leader in the third sector in Scotland and increasingly elsewhere beyond the UK. He continuously seeks to innovate and improve performance of the Trust, coming up with lots of new ideas and schemes. Internally he encourages and supports the staff to be the best they possibly can be, providing promotion and development opportunities for all and setting the tone/culture for the organisation. He has boundless energy and enthusiasm, always going the extra mile to support and accommodate stakeholders and staff. This is coupled with a resilience to bounce back from setbacks. Kenneth is very loyal and supportive of his team, seeking out the good in everyone.” [Para. 68]

Click here for a photograph of Kenneth Ferguson

ENDS