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Tribunal rejects claim of religious discrimination by NHS Non-Executive Director opposed to same-sex adoption (Page v NHS Trust Development Authority)

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Last week London South Employment Tribunal dismissed a claim by Richard Page for religious discrimination. The case concerned the NHS Trust Development Authority’s decision that he was not a suitable person to hold office as a Non-Executive Director in the NHS because of his conduct in publicising his opposition to same-sex adoption in the national media. Cloisters barrister David Massarella represented the successful Respondent. Catherine Casserley considers the judgment.

The facts

Since 2008 the refusal of adoption services to same-sex couples because of their sexual orientation has been unlawful discrimination.

 

From 2012 to 2016 Mr Page held office as a Non-Executive Director (‘NED’) of the Kent and Medway NHS and Social Care Partnership NHS Trust (‘the Trust’).

Mr Page is a devout Christian. He believes that it is ‘not normal’ for a child to be adopted by a same-sex couple, as it is always in the child’s best interests to be brought up by a mother and a father. Until 2016 he sat as a lay magistrate. In December 2014 he was issued with a reprimand by the Lord Chancellor and the Lord Chief Justice, who found that, in deciding an adoption case involving a same-sex couple, he had been influenced by his religious beliefs rather than the evidence. Shortly afterwards he gave interviews to local and national media, challenging the reprimand and re-stating his views. For example, an article in the Mail on Sunday quoted him as saying: ‘There is tremendous pressure to keep quiet and go along with what is seen to be politically correct’ and ‘I think there is something about a man, a woman and a baby, that it’s natural and therefore the others are not.’ At least one of the interviews made a connection with Mr Page’s work in the NHS.

Mr Page was advised by the Trust’s Chairman that expressing these views through the media had the potential to have a negative impact on the Trust’s stakeholders (staff, service-users and members of the public) and to undermine their confidence in the Trust’s commitment to equality for LGBT people. Further, he was told that his failure to keep the Trust informed of his actions was unacceptable. Although C was unapologetic about his decision to publicise his views, he accepted that it was an error on his part not inform the Trust in advance of that decision. He undertook to conform strictly with the Trust’s policies which (he agreed in evidence) included a requirement to promote equality for LGBT people.  Having made its position clear, the Trust took no further action at that stage.

Despite these assurances, Mr Page continued to engage with the media without informing the Trust. This led to further disciplinary action by the Lord Chancellor who removed him from the magistracy for serious misconduct, finding that his ‘comments on national television would have caused a reasonable person to conclude that he was biased and prejudiced against same-sex adoption’. The next day Mr Page accepted an invitation to appear on ITV’s Good Morning Britain. In response to questions from Piers Morgan he repeated his views on same-sex adoption, adding that he also disagreed with same-sex marriage and considered homosexual activity to be wrong. Again, the Chair of the Trust only found out about this interview after the event.

The Trust referred Mr Page to the NHS Trust Development Authority, the body responsible for the appointment of NEDs, which subsequently ruled that it was not in the interests of the health service for Mr Page to continue to serve as a NED in the NHS.

Mr Page issued Tribunal proceedings, claiming direct and indirect religious discrimination, harassment related to religion and victimisation. The Tribunal (chaired by Employment Judge K. Bryant QC) dismissed all his claims.

Key findings of the Tribunal

As a NED, Mr Page was a public office-holder. The Tribunal found that he had a high profile within the Trust. It also found that ‘there have been significant difficulties with a lack of willingness on the part of LGBT members of the community to engage with mental health services such as those provided by the Trust’.

Although Mr Page denied courting publicity, he confirmed in evidence that he had shared his views on same-sex adoption with anyone from the press who wanted to speak with him, that he has continued to do so and intends to do so in the future. As the Tribunal observed: ‘this was demonstrated during the course of the tribunal hearing by a number of appearances on television news programmes’.

The Tribunal recorded Mr Page’s evidence that ‘he has never thought this may be a bad idea and he has never thought about the effect it may have on others, be it staff or patients or potential patients of the Trust or anyone else.’ It went on to find that:

‘Of particular importance to the [Respondent] in reaching its decision was the Claimant’s apparent inability or unwillingness to distinguish between his personal views and what it was appropriate, given his role as a Non-Executive Director with a high profile in the Trust, to say to the press and other media.’

Rejecting the direct discrimination claim, the Tribunal found that the TDA’s actions were not because of Mr Page’s religion, or because he held or expressed his views, but were because he accepted invitations to appear in the press and on national television, with the likely consequent impact on staff and patients, and the fact that he did so without informing the Trust, despite specific requests to do so. It rejected (paras 70-71) Mr Page’s contention that his religious views could not validly be distinguished from the manner in which he chose to express them. The victimisation claim failed for the same reason. Indirect discrimination, harassment and victimisation claims were also dismissed.

Commentary

The Tribunal accepted—indeed it was not disputed by the Respondent—that the religious belief relied on by Mr Page for the purposes of his claim (‘that it is always in the best interests of a child to be brought up by a mother and a father’) satisfied the wide interpretation given to ‘belief’ for the purposes of the Equality Act 2010 (see, for example, the guidance given by Burton J in Grainger plc v Nicholson [2010] ICR 360).

However, in a passage which may suggest a new line of argument in future cases, the Tribunal observes (at para 48):

‘Had the belief relied on by the Claimant been the wider views expressed in his Good Morning Britain television interview in March 2016, i.e. that ‘homosexual activity’ is wrong then the tribunal may well have concluded that this was not a belief that was worthy of respect in a democratic society and/or one that was compatible with the fundamental rights of others.’

The distinction the Tribunal drew between a person’s beliefs and the manner of their expression (essentially a dividing line between manifestation of belief and misconduct) has now been made in a number of cases, and upheld on appeal. For example, in Chondol v Liverpool City Council, UKEAT/0298/08, unreported, 11th February 2009, a case about a social worker dismissed for proselytising his religious views to a service-user, Underhill P approved a distinction between ‘the religious belief as such and … the inappropriate promotion of that belief’ (para 23). See also Trayhorn v Secretary of State for Justice, UKEAT/0304/16/RN, unreported, 1st August 2017, a case concerning a Pentecostal minister in a prison, whose preaching included homophobic statements.

In the present case, adopting a ‘reason why’ approach to the direct discrimination and victimisation claims also obviated the need for the Tribunal to resolve the parties’ very different submissions as what the correct hypothetical comparator ought to be (for which, see paras 17 and 27).

As for the indirect discrimination claims, these failed in part because Mr Page relied on PCPs which the Tribunal found were either conceptually unsound or had not been applied to him; and in part because no cogent evidence was adduced to show group disadvantage within Mr Page’s chosen pool for comparison (‘all NEDs of NHS Trusts’). Similarly, the harassment claim failed because Mr Page had given no evidence at all as to any alleged violation of his dignity.

Mr Page also sought to advance arguments based on his Convention rights: Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression).

The Article 9 argument failed because the Tribunal found that Article 9(2), which protects the right to manifest religious beliefs, was not engaged at all because the manner and context in which Mr Page chose to express his beliefs was not ‘intimately linked to his religion or his beliefs’. Alternatively, if Article 9(2) was engaged, any interference with Mr Page’s rights was necessary and proportionate, having regard to the fact that his actions ‘were clearly in conflict with the protection of health, which is the Trust’s and the Respondent’s principal function, and with the protection of the right of others (two of the qualifications in Article 9(2))’ (para 57).

The Article 10 point failed simply because the Tribunal found that no clear argument had been developed on it during the hearing or in the course of submissions.

Further developments

Mr Page has indicated that he intends to appeal the judgment and is supported in the litigation by Christian Concern. He also has separate discrimination proceedings pending against the Lord Chancellor in respect of his removal from the magistracy. 

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