Protected characteristics - Court of Appeal rules on dismissal over controversial beliefs

Background

The Equality Act 2010 protects against direct and indirect discrimination in the workplace on the grounds of a range of ‘protected characteristics’, including religion or belief.

Indirect discrimination will occur when a provision, criterion or practise (PCP) puts a group of people with a particular protected characteristic under the Equality Act at a disadvantage which cannot be objectively justified. 

Victimisation occurs when an individual is subjected to a detriment because of a “protected act” i.e. asserting a claim or complaint or making an allegation under the Equality Act 2010.

Facts

Mr Page is a practising Christian, and was a director of an NHS Trust and a lay magistrate in the family courts.

In July 2014, Mr Page was on the magistrates’ panel for an application for a same-sex couple adoption. He told fellow magistrates that he believed it was “not normal” for children to be adopted by a same-sex couple or single parent and that it was best for children to be raised by a father and mother. Following this Mr Page faced disciplinary action. Mr Page referenced this in a newspaper interview and radio show.  Mr Page then went on to give media interviews expressing his views on the adoption of the child despite the Trust’s instructions not to do so. Subsequently, Mr Page was removed from his magistracy post, but he continued to engage with the media.

Mr Page was then removed from his post as non-executive director of the NHS Trust Development Authority, for the following reasons.

• Mr Page’s public response the decision to remove him from the magistracy.
• His continued engagement with the media and the concern that his public position was likely to have a negative impact on the confidence of staff, patients and the public in him as a local NHS leader.

Mr Page filed claims against the Authority for direct and indirect discrimination, victimisation and breach of his right of freedom of thought, conscience and religion under Article 9 of the European Convention on Human Rights (ECHR).

An employment tribunal dismissed Mr Page’s claims, finding that there was no direct or indirect discrimination: Mr Page had not been removed from the Trust due to his Christian belief/expression of it but rather because he had spoken to the press on multiple occasions without telling the Trust and without their permission. Through his actions Mr Page also appeared unwilling to distinguish his personal views from that which it would be appropriate for a high-profile individual to say to the press.

The tribunal also said that Article 9 of the ECHR was not engaged because Mr Page’s actions had not been “intimately linked” to his religion.

Mr Page appealed the decision and the Employment Appeal Tribunal dismissed the appeal. Mr Page then appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed Mr Page’s appeal. He was not given permission to challenge this in the Supreme Court.

The Court of Appeal agreed with the employment tribunal that there was no direct discrimination. The Trust Development Authority had not removed Mr Page from his role as Trustee because he was a Christian or because of his views towards family and homosexuality, but because he had repeatedly spoken to national media without informing the Trust. This was despite their numerous requests that he seek permission first.

The Court of Appeal supported the employment tribunal’s decision that Article 9 of the ECHR had not been engaged. The Court went further and said that even if Article 9 had been engaged, it would not have been breached because any restriction to Mr Page’s right to freedom of religion in this case would have been justified as being necessary and proportionate in the circumstances.

The Court of Appeal held that there had been no indirect discrimination; their rationale behind their decision on Article 9 of the ECHR would have applied to indirect discrimination also.

The Court also declared that there had been no victimisation because the protected actions had not been the reason for the Trust’s actions.

Comment

The Court of Appeal’s decision in this case is welcome and unsurprising.  Although it highlights the tension between what can be competing rights, the key issue here was not the beliefs themselves, but their public expression.

In their concluding remarks, the Court of Appeal commented that there are circumstances where it is right and reasonable to expect Christians (and people of other faiths) who work in public office or an institution to accept limitations on how they can publicly disclose or express their views on matters of particular sensitivity. However, whether such limitations are justified can only be judged on a case by case basis.

These comments could be transferrable to all areas of work. Whilst a person in a senior position within any company, organisation or institution is free to hold controversial beliefs, their expression of these, particularly on matters of sensitivity, should be balanced with the legitimate interests of the company/organisation and their diverse workforce and customer base.