United Kingdom: Removal from office of Christian magistrate and non-executive director for speaking in public against same-sex adoption was not discriminatory nor victimisation

Key takeaways

• There have been several high-profile cases highlighting the tension between sexual orientation or gender identity, and religion and belief rights.

• The claimant argued that it was artificial to distinguish between simply holding a view, and the manner in which it is expressed.  However, in his discrimination case for his removal as a non-executive director of an NHS trust, it was found that the issue was not his views, but that he repeatedly contacted the media to express them despite instructions not to.
• In his victimisation case, the issue was not whether the claimant had been discriminated against because of his beliefs, but whether he had been removed as a magistrate for complaining publicly that he had been discriminated against because of his beliefs.  It was found though that he was dismissed for having declared in the television interview that when hearing same-sex adoption cases, he would proceed on the basis of his own preconceived beliefs, and not on the basis of the law or the evidence.  Members of the judiciary are entitled to hold personal beliefs but must put these aside and consider only the law and evidence when deciding cases.
• Employees and office holders, particularly in high profile positions, may not be able to express their personal beliefs in public, particularly in press comment, where the nature of their role calls for restraint or where to do so adversely affects their employer’s interests.  However, the extent of such limitations must be considered in the circumstances of each case, in order to strike a fair balance between the rights of the individual and the institution or organisation for which they work.
• For further information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.

In more detail 

Victimisation occurs where A subjects B to a detriment because either B does a “protected act” or A believes that B has done, or may do, a protected act.  A protected act includes making an allegation that A, or another person, has contravened the Equality Act.

Article 9 of the European Convention of Human Rights (“ECHR”) provides that everyone has the right to freedom of thought, conscience and religion. This right includes freedom to manifest that religion or belief in worship, teaching, practice and observance.

An individual’s freedom to manifest their religion or belief is subject only to such limitations as are prescribed by law and are necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others (Article 9(2)).

Article 10 of the ECHR states that everyone has the right to freedom of expression, subject to certain limitations including as prescribed by law, necessary in a democratic society, or to maintain the authority and impartiality of the judiciary.

Facts

Mr Page is a practising Christian.  He was a lay magistrate from March 1999 until March 2016, hearing criminal and family cases, and was also a non-executive director of an NHS trust.

On appointment, lay magistrates must agree to administer justice according to the law, act in a way free from political, racial, sexual or other bias, and to be circumspect in their conduct and maintain the dignity and good reputation of the magistracy at all times in their public, private and working lives.   Further guidance given in 2012 advised magistrates not to communicate with the media and to avoid public comments on general issues or specific cases that might cast doubt on their impartiality.  If magistrates were considering speaking to the press, they should first consult the judicial press office.

In July 2014, Mr Page was one of a panel hearing an application by a same-sex couple to adopt a child.  He told the others on the panel that it was his firm belief that it was always in the best interests of a child to be brought up by a mother and father and that it was “not normal” to be adopted by single parent/same sex couple, and the chair of the panel complained.  Mr Page was given a warning and required to undergo additional training.

In January 2015, a national newspaper published an article quoting Mr Page, and he also took part in a radio phone in suggesting he had been disciplined for expressing his belief that a child should be raised by a mother and a father.

Mr Page did not tell the trust about the disciplinary action he faced as a magistrate, or the press interest.  However, the chair of the LGBT+ staff network notified the trust, which then warned him that public expression of his views could undermine confidence that he would exercise his judgement impartially and instructed him to inform it of further media interest.

In March 2015, he was interviewed on BBC Breakfast News, where he said that as a magistrate, he had to do what he considered best for the child and that therefore, he felt it would be better to be adopted by a man and a woman.  He also claimed to have been disciplined for his views as a Christian.

The Ministry of Justice concluded after another investigation that Mr Page had a expressed a personal view on same-sex adoption which did not reflect the law and which brought the magistracy into disrepute, and his conduct had breached his judicial oath.  Any reasonable person would conclude from his comments that Mr Page would be biased and prejudiced against same-sex adopters.  Mr Page showed no insight into the effect of his comments and maintained his views had not changed.  He was removed from the magistracy in March 2016.

Before the trust could speak to him about his removal as a magistrate, he was the subject of two more television interviews, in one of which he said that homosexual activity was wrong, that he didn’t agree with same sex marriage and that same-sex adoption could never be best for a child.

The trust suspended him and, after an investigation, decided not to review his term of office in June 2016 because of his public response to being removed from the magistracy.  It believed that his media engagement would have a negative impact on the confidence of public, staff and patients in him as an NHS leader.

Claims against the Lord Chancellor

Mr Page brought a number of claims in the employment tribunal, including victimisation and that his Article 10 rights had been infringed.  His claims were dismissed by the employment tribunal, the Employment Appeal Tribunal, and the Court of Appeal.

The only issue on the appeal was whether Mr Page had been removed as a magistrate because he had complained about the earlier disciplinary proceedings against him.

The court held he had been removed not because of his complaint, but because he had declared in the television interview that when hearing same-sex adoption cases, he would proceed on the basis of his own preconceived beliefs, and not on the basis of the law or the evidence.  His removal was lawful and his human rights had not been infringed.

In the previous case of Martin v Devonshires Solicitors, the Employment Appeal Tribunal had held that the conduct of an employee who had made multiple false allegations of discrimination was properly separable from the substance of her allegations, and she had not been victimised.  The question in a victimisation case is to identify the ‘reason’ for the respondent’s action: if it was wholly or substantially the claimant’s protected act, then there has been victimisation.  The Court of Appeal held that employment tribunals can be trusted to distinguish what should and should not be properly separable from the making of the complaint and there was no requirement that the circumstances be exceptional.

Article 10 was not engaged where the reason for the action was not the expression of certain views, but for reasons relating to a person’s ability to carry out their role.  Mr Page was entitled to hold strong personal beliefs, but judges must be able to put these to one side when carrying out their judicial function.

Claims against the trust

He brought claims of direct discrimination, indirect discrimination and victimisation against the trust.  His claims were dismissed by the employment tribunal, the EAT and the Court of Appeal.

The court held that Article 9 (freedom to manifest his religion) was not engaged and if had been, there would not have been any breach, because a manifestation must be intimately linked to the religion or belief, determined on facts of the case.

Mr Page was arguing that as well as his religious beliefs, Article 9 also applied to his traditional family belief , but it was not clear whether he had relied on this argument in the employment tribunal.  Even if it was engaged, the trust’s act was justified as the tribunal had found there was a genuine and reasonable concern that his expression of his views in the media risked impairing the willingness of homosexual people with mental health difficulties to engage with the trust’s services.

There was no direct discrimination against Mr Page.  His contract was not renewed not because he was a Christian, and not because of his traditional family belief, but because he expressed the latter and other opinions about homosexuality to the media, in circumstances which justified the trust’s action.   There was also no indirect discrimination; not only were his appeal grounds unsatisfactory, but the tribunal had found the trust’s actions were justified.

Indirect discrimination claims require evidence of group, as well as individual, disadvantage.  The court held there was insufficient evidence to make out group disadvantage.  Mr Page had quoted the Bible and presented two documents, including a petition.  The court did not find extensive evidence would have to be produced to establish that more Christians than non-Christians shared Mr Page’s views, but also it did not consider that the issue could be left purely to judicial notice.

The freedom to express beliefs is not unlimited, and there will be some circumstances where Christians or those who hold other faiths or beliefs who work for an institution, especially in a high profile job, must accept limitations on how they express their beliefs.  This must be done on a case by case basis.

Cases: Page v Lord Chancellor and another [2021] EWCA Civ 254; Page v NHS Trust Development Authority 2021] EWCA Civ 255