Multimillion-pound charitable trust sued for anti-Christian bias by former CEO and Stirling Free Church
A multimillion-pound Charitable Trust is facing multiple legal actions citing its lawyer chairwoman in court papers alleging anti-religious bias.
The Robertson Trust is the largest independent grant-making trust in Scotland, awarding more than £20 million a year to good causes. It is now at the centre of a discrimination row with its former CEO who claims he was unfairly dismissed because of his Christian beliefs. Stirling Free Church is also suing them after being booted out of a Trust property.
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 suing the Trust for unfair dismissal, religious discrimination and religious harassment.
His case will be heard in the Glasgow Employment Tribunal from Monday 14 to Thursday 17 December.
Meanwhile Stirling Free Church, where Ferguson is an elder, is taking the Trust to court alleging religious discrimination over the cancellation of their rental of Trust premises for Sunday services. The church signed a £6500-a-year agreement to hire the Trust’s premises at The Barracks Conference Centre in Stirling.
The church’s case is expected to be heard in Spring 2021.
The cases centre on the actions of the chair of the Robertson Trust, Shonaig Macpherson. Ms Macpherson – formerly Senior Partner of McGrigors Solicitors – is said to have become enraged on learning that the church was paying to use the premises during a visit to the Barracks in November 2019.
Mr Ferguson says:
“I was told by two members of my senior management team, that Shonaig Macpherson went ‘ballistic’ and was almost unable to speak because she was so angry. She kept asking why the Trust had rented to the Stirling Free Church. One colleague told me that Shonaig had said ‘definitely not the Free Church, anyone but the Free Church, they don’t believe in same sex marriage’. They said she was ‘incandescent with anger’. She went on to tell them that the values of the church were not the same as those of the Trust and were not compatible.”
Within days, the church was given notice to quit the property because their use of it “does not comply with Trust policy” which, the Trust claims, prevents rentals for activities promoting religion. Macpherson blamed Ferguson, who is an elder of the church. Mr Ferguson, who had declared his involvement in the church on the Trust’s register of interests, and who recused himself from all negotiations about the rental, said:
“I was extremely familiar with the Trust’s funding policy and in particular the Trust’s policy not to fund any work which promoted religion or was evangelistic in nature. But rental income from hiring out The Barracks was quite obviously not funding.”
“The Trust had a similar building in Glasgow where for the previous five years had been renting space to many hundreds of charities. There was no policy in place as to who could or could not rent.”
Mr Ferguson said his relationship with Shonaig Macpherson, which had previously been very positive, suddenly changed. He says she became rude towards him, would turn her back to him at meetings and mutter while he was speaking, as well as criticising him in front of other staff. This had a damaging effect on morale at the organisation. Between September 2019 and August 2020, five out of seven senior staff left the organisation. Some have since made complaints to OSCR, the Scottish Charity Regulator.
Despite commencing its disciplinary action against Ferguson over the church rental, the Trust’s dismissal letter of March 2020 cites vague ‘performance issues’ and makes no reference to the rental.
Macpherson had previously said she hoped Ferguson would stay on until his retirement in five years and in April 2019 had given Ferguson 8 out of 10 in an appraisal of his performance as CEO. She wrote that he:
“…continuously seeks to innovate and improve performance of the Trust… Internally he encourages and supports the staff to be the best they possibly can be… He has boundless energy and enthusiasm…”
“Kenneth runs the organisation efficiently and effectively”.
“An optimistic and positive leadership style which engenders confidence within and outside the Trust… Excellent ambassador for the Trust throughout the UK… Very good technical skills. Strong personal values set.”
This view was confirmed in her blog of July 2019 referring to the “outstanding staff team, ably led by Kenneth Ferguson”. At a board meeting in September 2019 one trustee stated: “Kenneth you are the best, most innovative leader in the Third Sector.”
Ferguson was highly thought of by his staff who rated him 9.25 out of 10 in his 2019 appraisal. They were shocked and, in some cases, tearful at the Trust’s treatment of him. He worked under four Chairs at the Trust. His relationship with the previous three was entirely positive.
Ferguson is seeking damages in the sum of £74,893.52 and a declaration that he was unfairly dismissed and discriminated against on the grounds of his religion.
Stirling Free Church legal action
Meanwhile Stirling Free Church has lodged a writ against the Trust at Glasgow Sheriff Court, seeking £10,000 damages for breach of contract over the use of The Barracks and a further £50,000 damages for discrimination.
The one-year contract between the church and the Trust, signed in June 2019 and commencing when The Barracks opened in November, expressly permitted use of the premises “for public worship and delivery of religious instruction”. But shortly after Shonaig Macpherson expressed her hostility to its beliefs about marriage, the congregation received notice to quit.
It is unlawful for the providers of venue facilities to discriminate against people because of their religious beliefs. And the UK courts have consistently held that the religious belief that marriage is between a man and a woman is protected by equality and human rights law.
Despite several requests from the church, the Trust failed to provide a copy of the alleged policy preventing them from renting the Barracks.
The church received a letter from the venue manager cancelling a separate one-off booking made by the church. Asked to explain, she stated:
“It comes back to our policy that we don’t work with ‘Projects and activities which incorporate the promotion of political or religious beliefs’”.
The church wrote to the Trust Head of Finance asking for a copy of any policy documents. He replied:
“We don’t have an explicit policy which states who we will and won’t hire our buildings to, but make decisions on a case by case basis with the funding policy regarding ‘projects and activities which incorporate the promotion of political or religious beliefs’ being an example of what we would take into consideration”.
Lawyers for the church wrote to the Trust’s legal team stating:
“It is clear the funding policy does not apply to the hiring of premises and there is no policy whatsoever for the hiring of the Premises. Your client’s decision is as said in the email exchange on a case-by-case basis, which has no basis in law when it comes to hiring out premises.
“By your client’s actions, your client is in breach of the terms of the Licence and is contrary to the Equality Act 2010.”
The letter says the Trust has discriminated against the church by treating it “less favourably” than it would treat others on account of their religion or belief.
Stirling Free Church minister Revd Iain MacAskill said:
“We are a thriving church that welcomes all people and preaches the gospel of Jesus Christ. We were shocked to be told we could no longer use the Barracks for our Sunday services. We had negotiated with the Trust in good faith and their contract expressly refers to us using the premises for religious worship.
“The Free Church believes marriage is between a man and a woman – a mainstream Christian belief shared with the Church of Scotland and the Church of England.
“We had no problems with Trust staff during our negotiations. The staff seemed embarrassed when they had to tell us they were terminating our arrangement. We have had no other option but to resort to legal action.”
Kenneth Ferguson and the church are both being supported by The Christian Institute in their legal actions against the Trust. The Institute successfully led the legal battle to have the Scottish Government’s Named Person scheme declared unlawful by the UK Supreme Court.
Simon Calvert, the Institute’s Deputy Director for Public Affairs, said:
“Scotland’s biggest grant-making Trust pride themselves on serving the community. But their actions in relation to Kenneth Ferguson and Stirling Free Church suggest somebody there has a problem with people with orthodox religious beliefs.
“They’re trying to claim the rental agreement with the church was against policy when no such policy existed.
“And they’ve kicked out a much-loved and highly successful CEO while shifting ground on their reasons.
“There’s clearly something going on here and we hope these legal actions will bring it to light and secure justice for the Christians who have lost out as a result.”
BACKGROUND NOTES FOR EDITORS
THE ROBERTSON TRUST
The Robertson Trust is “currently the largest independent grant-making trust in Scotland. Inspired by the example of its founders, the Robertson Sisters, it has a vision for a fair and compassionate Scotland where everyone is valued and able to flourish”.
According to their website:
“The Robertson Trust was established in 1961 by the Robertson sisters – Elspeth, Agnes and Ethel – who donated the shares in the family businesses, founded and developed by their grandfather and father, to the Trust for charitable purposes.
“The sisters were among the first Trustees, serving for a combined total of 71 years and ensuring the Trust upheld the principles at the heart of the family: honesty, integrity and a willingness to help people in need.”
N.B. The legal actions by Stirling Free Church and Kenneth Ferguson are being brought against “Kintail Trustees Limited as a trustee of the Robertson Trust”. Kintail Trustees Ltd is the only trustee of The Robertson Trust.
The Robertson Trust issued the following statement welcoming Ms Macpherson as the new Trust chair:
“Since retiring as Senior Partner of McGrigors Solicitors in 2004, where she was responsible for the firm’s strategy as well as leading one of the UK’s leading intellectual property teams, Ms Macpherson has undertaken senior appointments across a range of sectors. She is currently Chairman of the Royal Lyceum Theatre Company and a board member of Euan’s Guide, Futurelean Limited and the Dunedin Consort.
“Past appointments, meanwhile, include Chairman of The National Trust for Scotland, The Prince’s Scottish Youth Business Trust, Scottish Council for Development and Industry, the Scottish Council Foundation and ITI Scotland Limited and Vice Chairman of the Royal Edinburgh Military Tattoo Limited. Ms Macpherson has also served on the Governing Bodies of the University of Edinburgh, Edinburgh College of Art, the Open University, The Royal Conservatoire of Scotland and Heriot Watt University.
“In 2001, Ms Macpherson was appointed as the first ever non-executive appointee to the Management and Strategic Boards of Scottish Government and became the first lay person to chair the Audit Committee of the Scottish Government. She was a member of the UK Government and Scottish Parliament’s Commission on Scottish Devolution, the Scottish Executive’s Culture Commission and the Knowledge Economy Task Force. Ms Macpherson also became a member of the Joint Management Board of the Scotland Office and the Office of the Advocate General in 2015.”
Ms Macpherson was well-known throughout Scotland before becoming Trust chair, serving in numerous commercial and third sector roles. The Times described her in 2009 as “formidable” with a “reputation for ruthless efficiency”. She resigned in 2010 as Chair of the National Trust for Scotland after a tenure variously described as ‘eventful’, ‘troubled’ and ‘turbulent’.
THE CHRISTIAN INSTITUTE
The Christian Institute is a non-denominational registered charity, which seeks to promote the Christian faith in the UK.
It was founded in 1991 by Christian church leaders and professionals and it currently campaigns on a range of issues including marriage and the family, child protection, pro-life concerns, drugs, religious liberty and education, as well as Christianity and the constitution.
 ‘Talking about your funding’, The Robertson Trust, see https://www.therobertsontrust.org.uk/funding/support-for-grant-holders/talking-about-your-funding/ as at 3 December 2020
 ‘Our History’, The Robertson Trust, see https://www.therobertsontrust.org.uk/about-us/our-history as at 3 December 2020
 ‘Shonaig Macpherson appointed new Chairman of The Robertson Trust’, The Robertson Trust, November 2017, see https://www.therobertsontrust.org.uk/news/shonaig-macpherson-appointed-new-chairman-of-the-robertson-trust as at 13 May 2020
 The Times online, 18 January 2009, see https://www.thetimes.co.uk/article/shonaig-macpherson-waking-up-a-sleeping-giant-xxc670w0t3j as at 3 December 2020
 ‘Shonaig Macpherson to quit National Trust for Scotland’, Third Sector, 1 September 2009, see https://www.thirdsector.co.uk/shonaig-macpherson-quit-national-trust-scotland/governance/article/930850 as at 3 December 2020; ‘NTS chairwoman urged to step down immediately’, Harris, G, Museums Journal, 13 November 2009, see https://www.museumsassociation.org/museums-journal/news/2009/11/36482-2/# as at 3 December 2020