A Christian man was dismissed from his posts as a non-executive director and a magistrate for expressing his views on homosexuality and same-sex couple adoption in public - was this considered discrimination? Lorna Scully analyses recent Court of Appeal rulings.
Removal from his position as a Lay Magistrate
Mr Page held appointments both as a lay magistrate and separately as a non-executive director for an NHS Trust. Whilst working in his role as a magistrate, Mr Page publicly declared that when he dealt with cases involving adoption by same-sex couples, he would be swayed by his own Christian beliefs rather than following the law and supporting evidence.
This was in breach of a declaration and undertaking he had signed, promising to "Endeavour to ensure that my actions as a magistrate are free from any political, racial, sexual or other bias," and contrary to issued guidance.
As a result, Mr Page was removed from his post as a magistrate.
Dealings with the media and dismissal from his NHS post
Mr Page subsequently continued to express his view in public that he was opposed to same-sex couples adopting based on his Christian beliefs and he gave several interviews to the media, including an interview with Good Morning Britain, in which he shared his views on homosexuality and same-sex marriage.
He defended his right to speak out on the grounds that he felt he had been subjected to both 'discrimination and detriment for the expression of the view that a child needs a father and a mother, views premised in his religious and philosophical beliefs'.
However, due to both his public response to the decision to remove him from the magistracy and his continued engagement with the media which his employer, the NHS Trust Development Authority (the Authority), felt would be likely to have a negative impact on the confidence of staff, patients and the public in him as a local NHS leader, the decision was taken not to extend his term as non-executive director.
Challenging the dismissal
Mr Page challenged both 'dismissals' in two separate cases, claiming direct and indirect discrimination on ground of his religious beliefs, victimisation and breach of his rights under Article 9 (freedom of religion) of the European Convention of Human Rights (the Convention) against the Authority and victimisation and breach of Article 10 (freedom of speech) of the Convention in relation to his removal as a magistrate.
Mr Page was unsuccessful on all counts at the employment tribunal, appealed to the EAT and was also unsuccessful, and so appealed both decisions to the Court of Appeal.
Appeal - dismissal as non-executive director
The two appeals were heard together, but separate decisions were reached. In relation to the non-executive appointment, the Court of Appeal held that the tribunal had been correct in concluding that Article 9 of the European Convention of Human Rights (freedom of religion) was not triggered, but that even if it had applied, there would have been no breach because the restrictions on Mr Page exercising his right to freedom of religion were justified as 'necessary and proportionate' in these circumstances.
The reason Mr Page was removed from his NHS post was not as a result of his religious beliefs, but rather because he had spoken to the media on a number of occasions without first informing the trust. This was in spite of their repeated requests that he should seek their permission before doing so. As a result, there was also no direct discrimination, nor was the dismissal indirectly discriminatory as even if a provision, criterion or practice did apply, the same logic as above would necessarily apply, ie that the Authority's actions were justified.
Appeal - removal as Magistrate
Mr Page appealed on the basis that he had been removed from his post as a magistrate for complaining about potential religion and belief discrimination in relation to disciplinary proceedings which had been brought against him at an earlier date. The Court of Appeal held that he was not in fact removed for this reason, but instead because of his public declaration that when he dealt with cases involving adoption by same-sex couples, he would proceed not on the basis of the law and the evidence, but on the basis of his own preconceived beliefs about such adoptions.
The Court found that it plainly brings the magistracy into disrepute if a magistrate says publicly that they will judge cases according to their own preconceptions rather than according to the law and the evidence, and it makes no difference that those preconceptions are motivated by religious faith.
Mr Page's removal was therefore deemed to be lawful under the Equality Act 2010, and it was ruled that there had been no breach of his right to freedom of expression under Article 10 (freedom of expression) of the Convention. Mr Page was denied permission to appeal to the Supreme Court.
What does this mean for employers?
These cases demonstrate that there will be some circumstances in which the freedom to express religious beliefs is constrained - especially where the holder of such beliefs holds a high profile position, and in particular where it involves comments or opinions on other protected characteristics, such as sexual orientation.
However, all such situations will be judged by a careful assessment of the relevant circumstances, so that a fair balance can be struck between the rights of the individual and the legitimate interests of the institution they work for.
Whilst this case makes it clear that there are some circumstances in which the right to express religious beliefs should not be exercised, it also highlights that where an employer take issues with an employee's conduct, it is worth noting why they have done so, the potential impact on the individual's ability to perform their duties, and the effect any opinions expressed may have on other stakeholders' perception of that individual or the employer more generally.
(Page v Lord Chancellor and another  EWCA Civ 254 (26 February 2021).)
(Page v NHS Trust Development Authority  EWCA Civ 255 (26 February 2021).)