Appeal No. EATS/0005/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 25 October 2002

 
Before
THE HONOURABLE LORD JOHNSTON
MR A J RAMSDEN
MR P M HUNTER

 

DAVID GALLANT	APPELLANT

 

 
CHURCH OF SCOTLAND
BOARD OF SOCIAL RESPONSIBILITY	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr D Gallant, In Person
231 Mackintosh Road
INVERNESS
IV2 3UB

 	
For the Respondents	Miss J Fraser, Solicitor
Of-
Messrs Mackay Simon
Employment Division
Maclay Murray & Spens
3 Glenfinlas Street
EDINBURGH   EH3 6AQ

 

LORD JOHNSTON:
 
1.	In this appeal the appellant represented himself and raised various points with regard to the finding of the Employment Tribunal dismissing his complaint of race discrimination against the respondents.
 
2.	The background to the matter is that the appellant responded to an advertisement placed by the respondents, with regard to the post of a care worker in one of their residential homes.  The advertisement in question makes it clear that the applicants are required “to have a live Church connection and a Christian commitment”.
 
3.	The appellant was not even called for interview in respect of his application and maintained, since he is a Jew, that he was being discriminated against on racial grounds by reason of the fact that he cannot adhere or conform to the Christian requirement in the advertisement.
 
4.	Before dealing with that point however the appellant also raised two separate questions.
 
5.	Firstly, he complained that as a matter of procedure that the Tribunal Chairman should not have sat in the matter because of apparent connection with the Church of Scotland through baptism.  We consider there is to be no substance in this point.  Secondly, the appellant complained about a refusal to order the attendance of a witness, the Reverend Andrew McClellan, who is a well known figure in the Church of Scotland.  In this respect we are satisfied that the Tribunal, in the exercise of its discretion, was entitled to refuse that application on the grounds that it had no obvious relevance to the claims being made by the appellant.
 
6.	Quite separately, the appellant had also raised certain questions under the Human Rights Act 1998 before the Tribunal, who declared that they had no jurisdiction in respect of the substance of issues being raised.  While it is true that a Tribunal must comply with the Human Rights Act in its interpretation of statutes and in relation to its procedures, it does not have jurisdiction to entertain the sort of issues that were being raised by the appellant in this case and we simply adhere to the position of the Tribunal in this respect.
 
7.	The main point raised by the appellant in the appeal was alleged racial discrimination and in this respect the Tribunal’s decision is as follows:-
 
“We find the guidance afforded by the Board of Governors of St Matthias Church of England School to be persuasive.  In that case the applicant failed to be appointed as head teacher of a voluntarily aided school.  The decision of the governors was based on the fact that the applicant was not a communicant Christian.  The Tribunal found that the requirement to be such was such that a larger proportion of white than non-white people could comply with it.  The condition could not be objectively justified in the context of a school providing efficient education within the frame work of the relevant statute.  On appeal, the Employment Appeal Tribunal stated that the requirement could only be justified if the governors’ objective was a legitimate objective, if the means used to achieve the objective were reasonable in themselves and if the reasonable needs of the governors were justified when set against the discriminatory effect upon the applicant’s racial group.  There required to be an objective balance of both the needs and the discriminatory effect.  The Tribunal at first instance had failed to take account of the fact that the governor’s objectives related to spiritual practices at the school and not purely to the provision of education.  School governors are entitled to examine and take account of the way in which a school is managed, including its form of worship, and the governors of St Matthias had thought it in the best interest of the school that the head teacher could assist at mass and administer communion.  As the governors’ objectives were based in the field of worship, it was in this context that the test of justifiability should have been applied.
 
In this case it is to be noted that those persons who receive care at the hands of the respondents’ employees may be of any religion or of no religion.  The important point is, however, that the care is administered according to a Christian ethos.  The respondents are part of a Christian Church.  They provide care according to a Christian ethos.  We therefore find that in seeking to provide care according to a Christian ethos the respondents, as a Christian Church, have an objective and a legitimate objective.  We also find that the means used to achieve the objective are reasonable.  We find that the reasonable needs of the respondents are justified when set against the discriminatory effect upon the applicant’s racial group.
 
As already indicated, the applicant also appeared to be making a case that Asians, and not only Jews, were discriminated against.  For the reasons which we have already given, however, that case must also fail.”
 
8.	We are in complete agreement with the approach of the Tribunal in this respect, in the sense that, assuming there was discrimination which is properly to be regarded as indirect rather than direct, the requirement of Christian commitment is plainly objectively justifiable within the meaning of the Matthias Church case and we can do no better than to endorse the reasoning of the Tribunal in this respect.
 
9.	In these circumstances we consider the Tribunal was correct in concluding that there was no grounds to assess any form of racial discrimination against the appellant and that, accordingly, there is no error in law in its conclusions.
 
10.	This appeal will be dismissed.