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Employment Law Cases
Removal of director for expressing faith-based objection to same-sex adoption was not religious discrimination
Page v NHS Trust Development Authority
The removal of a non-executive director from his post after he spoke to the press expressing disapproval for same-sex couple adoption was not discrimination on the grounds of religion.
Mr Page, a practising Christian, was a non-executive director (NED) of an NHS trust and also a magistrate sitting on family cases involving adoption decisions. His avowed belief is that it is ‘not normal’ for a child to be adopted by a single parent or same-sex couple. After expressing his beliefs during a magistrates’ hearing he was reprimanded. He did not inform the trust of this or the subsequent media interest. When the trust found out about it, he was warned that public expression of his views could undermine confidence that he would exercise his judgement impartially and was told to inform the trust of any further media interest. Despite this Mr Page continued to give media interviews. This led to his removal from the magistracy. Subsequently the trust decided not to renew his term of office as a NED. Mr Page brought claims of direct and indirect discrimination against the trust because of his religious beliefs. A tribunal dismissed all his claims and he appealed. The EAT dismissed his appeal. The tribunal had found as fact that the reason Mr Page had been treated as he had was because he had spoken to the media without informing the trust (as he’d been expressly told to do so) – not because of his beliefs. Such a finding by the tribunal could not be said to be perverse and the EAT would not interfere with it. As for Mr Page’s argument that the tribunal had failed to identify an appropriate comparator, the EAT held that there was no need to do so given the clear, non-discriminatory reason for the way he'd been treated. In any event, an appropriate comparator would have been someone who, for reasons unrelated to religious belief, spoke to the media against the trust’s instructions and whose remarks would have been likely negatively to affect the trust’s ability to serve the community in its catchment area. There was little doubt that such a comparator would have been treated by the trust in precisely the same way in which Mr Page had been treated. Mr Page appealed again.
Court of Appeal decision
The appeal was dismissed.
Mr Page’s appeal focused on human rights issues under the European Convention on Human Rights (ECHR). The Court of Appeal rejected his argument that his removal as an NED breached his art. 9 right to freedom of religion. It endorsed the tribunal’s reasoning that Mr Page’s public expression of his concerns about same-sex adoption was not a manifestation of his belief. Although it was clear in Mr Page’s media interviews that his views about homosexuality derived from his Christian faith, ECHR case law shows that a causative link of that kind is not necessarily enough. The closeness and directness of the relevant nexus was a matter for the tribunal’s assessment. The tribunal was therefore entitled to find that art. 9 was not engaged in relation to Mr Page’s Christian beliefs.
Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/255.html
Mr Page appealed separately against the rejection of his victimisation claim against the Lord Chancellor following his removal as a lay magistrate. The EAT also rejected this appeal. It agreed with the tribunal that his remarks would lead a reasonable person to conclude that he would always decide a particular type of case in a specific way irrespective of the evidence or the law. This suggested he was prepared to flout his judicial oath of impartiality and this in turn could bring the judiciary into disrepute. To the limited extent that Mr Page had done a protected act, he was not dismissed for having done it. Rather, he was dismissed for the reasons put forward at the time of his removal, namely disregarding judicial advice about contact with the media and making comments that could damage the judiciary and call its impartiality into question. The Court of Appeal dismissed Mr Page's appeal from the EAT.