Religion and belief discrimination
In Page v NHS Trust Development Authority, an employment appeal tribunal (EAT) had to consider whether the claimant employee, Mr Page, had been treated in a discriminatory manner by his employer because of his religious beliefs or whether the manner in which he had expressed his beliefs to the media, without informing his employer that he would be expressing those views, was the real reason for his treatment.
By way of background, in 2012 Mr Page was appointed as a non-executive director (NED) at an NHS Trust. This was a four-year fixed-term appointment, and the role was described as ‘high-profile’ and ‘hands on’. Mr Page also occupied a lay magistrate position from 1999 until his removal in March 2016.
In 2014, Mr Page was part of a panel of magistrates hearing an application by a same-sex couple to adopt a young child. Although the adoption application was unopposed, Mr Page expressed views to his fellow magistrates that made it clear that he had an issue with the notion of a same-sex couple adopting a child. The other magistrates complained and Mr Page was reprimanded for his conduct.
The disciplinary action against Mr Page was reported in the Mail on Sunday and the Daily Mail Online in January 2015. Mr Page did not inform the trust about the disciplinary action or about his contact with the media. When the trust learned about the disciplinary action, the non-executive chair of the trust, Mr Ling, arranged to meet with Mr Page. The day before the meeting, Mr Page participated in a live radio phone-in on Radio Kent. The trust had not been informed about this.
At the meeting Mr Ling told Mr Page that it was important that he notify him if there was going to be any further media coverage.
A few days later, the trust received a formal complaint from the chair of the trust’s LGBT staff network concerning Mr Page, including references to his press and radio interviews. Mr Ling therefore arranged to meet again with Mr Page.
During the meeting Mr Page confirmed his view that children need a mother and a father and that he stood by this view. He was asked to give an assurance that he would not express his views in a public forum but he would not give that assurance. However, he accepted that he should have told the trust about his contact with the media.
Despite this, Mr Page continued to engage with the media without notifying the trust and gave an interview to BBC Breakfast News the same day as he had written to the trust apologising for the impact on the trust and that he would continue to conform strictly with the trust’s policies and procedures, together with the standards for NHS boards. Following this interview, Mr Page was subject to further disciplinary action in respect of his magistracy and was removed with effect from March 2016.
The trust learned of Mr Page’s removal from the magistracy on 10 March 2016 and Mr Ling arranged to speak with Mr Page the following week. Before the meeting took place, Mr Page participated in further media interviews, including Good Morning Britain.
Mr Ling had a further meeting with Mr Page on 15 March 2016. Mr Page was told that his term of office as NED would not be renewed after June 2016 because Mr Ling wanted to ‘refresh’ the board. As Mr Page had contacted the media without informing Mr Ling, he was told that he could resign voluntarily or that the matter would have to be reported to the NHS board with a request that he be suspended pending investigation. Mr Page refused to resign and was, therefore, suspended.
Mr Page complained to the employment tribunal (ET) that the following were acts of discrimination because of his religious beliefs:
- His suspension.
- The investigation by the trust’s termination of appointments panel.
- The decision that he should not continue to serve the trust as NED.
Mr Page, as a practising Christian, believes that every child should be brought up by a mother and a father. He expressed the view that it was in the best interests of a child to be adopted by a mother and a father. Indeed, he stated that it was ‘not normal’ to be adopted by a single-parent or a same sex couple.
He presented his case to the ET which found that the reasons for the trust’s actions were not because of Mr Page’s religious beliefs, but because of the way those beliefs were expressed in the media. They also found that the trust had applied an appropriate provision, criterion or practice (PCP), as stated in section 13 of the Equality Act 2010, when considering the LGBT community and the confidence they would have in the trust.
Mr Page appealed the ET’s findings claiming that his removal as an NED breached his article 9 human right to freedom of religion.
The EAT dismissed the appeal. It agreed with the ET that the trust had acted as it did because:
- Mr Page had appeared in the press and on TV without informing the trust when he had been expressly told to do so.
- His actions were clearly in conflict with the protection of health, which is the trust’s principal function.
- There was a specific and genuine concern on the part of the trust as to the impact of Mr Page’s actions on the trust’s ability to serve the entire community in its catchment area.
The EAT agreed that all of these matters answer the ‘reason why’ question which the ET was required to ask itself and that none of them were found to relate to Mr Page’s religious beliefs.
The case was then heard in the court of appeal, where it was dismissed. The appeal judges agreed with the findings of both the ET and the EAT. In addition, Lord Justice Underhill stated that Mr Page’s barrister appeared to be suggesting that ‘if the decisions of the ET and the EAT stood it would become impossible, or in any event difficult, for Christians (and members of other faiths) holding traditional views about sexual identity and sexual morality to hold any kind of public office’. Lord Justice Underhill stated that this is obviously wrong and that the issue raised by this case is ‘not about what beliefs such a person holds but about the limits on their public expression’.
A dismissal due to comments made by an employee because of their religious belief will not necessarily be deemed discriminatory. In this case, it was easy to distinguish between having a particular view and the manner in which it was expressed, given Mr Page had repeatedly contacted the media, despite being told not to. However, employers should be mindful that religion is a protected characteristic and any investigations into expressions of religion should be dealt with consistently.