Member S Singh Tribunal Member G Doherty Mr K Ferguson v Represented by Mr T Cordery Barrister Instructed by Mr T Ellis Solicitor Kintail Trustees Ltd — 2021

Kenneth Ferguson was employed by Kintail Trustees Ltd as Director and Chief Executive from 2011. The dispute arose after the Robertson Trust’s Barracks premises were licensed to Stirling Free Church for Sunday worship at a concessionary rent. On 8 November 2019 the Chair, Shonaig Macpherson, learned that the Church was using the premises; the majority of the tribunal found that her immediate reaction included references to the Church’s beliefs on same-sex marriage and sexual relationships, and that she raised the matter with trustees in terms of concern about the Church’s views, reputational risk and the claimant’s role.

The tribunal found that the claimant had a conflict of interest because he was a member, elder and treasurer of the Church, and that he did not escalate the Church’s approach to his line manager or the trustees. Ms Judy Cromarty later concluded, after investigation, that there had been breaches of the conflict of interest policy and what she understood to be the Funding Policy or neutrality principle, and she imposed a final written warning on 23 December 2019. Professor Lorne Crerar dismissed the appeal on 21 January 2020 but reduced the warning period to 12 months. The tribunal accepted those decisions were genuinely based on the conflict and policy issues, and not on the claimant’s protected beliefs.

For the later dismissal process, the tribunal held that the principal reason for dismissal on 16 March 2020 was Macpherson’s belief that the claimant was not performing his role of Chief Executive as she wanted. Capability was therefore a potentially fair reason for dismissal, but the dismissal was unfair under s.98(4) ERA 1996. The tribunal relied on the absence of any clear warning that performance concerns could cost the claimant his job, the lack of a formal performance management process, the lack of a proper investigation or supporting documents before the 12 March 2020 hearing, the fact that Macpherson was herself a witness to and participant in the issues, and the absence of an impartial appeal hearing.

By majority, the tribunal also held that the claimant was directly discriminated against because of religion or belief. It accepted that his evangelical Christian beliefs, and his association with a Church that believed marriage and rightful sexual relationships were only between a man and a woman, formed a more than trivial part of the reasons for the treatment complained of. The majority found that the first respondent had not shown that the detriments and dismissal were in no sense whatsoever because of those beliefs. The tribunal also held that the second respondent was liable under ss.109-110 Equality Act 2010 for the discriminatory acts she carried out as the respondent’s agent.

The harassment claim failed. The tribunal held that, although the claimant experienced strained treatment and robust criticism, the conduct did not satisfy the statutory test in s.26 Equality Act 2010 when assessed in context. It also found that the claimant had in fact been involved in the licence arrangements and that some of the employer’s concerns about conflict of interest and performance were legitimate, even though the later dismissal process was unfair and discriminatory.