Lord, give me the audacity of a man sacked from a high-profile role for persistently preaching homophobic prejudice on national television, who then sues his employer for discrimination on grounds of religious belief.

Richard Page v NHS Trust Development Authority [2019] 6 WLUK 291 joins a growing line of cases where persons sanctioned for promoting discriminatory views hit back by using employment legislation and human rights law.

In an era of identity politics where ‘culture wars‘ pit minority groups against one another, how can the Equality Act 2010 achieve fair and balanced outcomes in these cases? Page offers some answers.

Background

The Claimant was a practising Christian who believed that the best interests of children were served by being raised by a mother and a father, as opposed to being raised by a single-parent or a same sex couple.

Following a career in finance, the Claimant was appointed as a Non-Executive Director (‘NED’) of the NHS Trust Development Authority (‘NHS TDA’). He was also a Magistrate for 17 years, sitting in family courts that decided adoption matters and criminal courts.

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In 2014, while sitting with a panel of Magistrates, the Claimant expressed his opposition to a same-sex couple adopting a young child (despite independent evidence supporting the adoption). A complaint followed and the Claimant was disciplined by the Magistracy. Press coverage linked the Claimant to NHS senior management.

The NHS TDA was not consulted about the Claimant’s subsequent media appearances, which themselves triggered internal complaints from a group of LGBT staff. After promising the NHS TDA that he would not express his religious-inspired opposition to same-sex parenthood in public, the Claimant conducted further national television news interviews where he (wait for it…) expressed his religious-inspired opposition to same-sex parenthood in public.

And so the Claimant appeared on Good Morning Britain where he was interviewed by Piers Morgan and Susanna Reid, where he had the following exchanges:

PM: …Do you think being gay is unnatural?

RP: It is not what is best for a child.

RP: I do not agree with same sex marriage

PM: You don’t agree with same sex adoption?

RP: I do not see that could ever be the best for the child … that is my responsibility.

The NHS TDA suspended and then disciplined the Claimant, eventually deciding to terminate his role as a NED. He brought claims in the Employment Tribunal alleging direct and indirect discrimination on grounds of his religious beliefs and victimisation against the NHS TDA and separately against the Magistracy. As they were both public bodies, the Claimant claimed that his human rights under ECHR Articles 9 (freedom of religion and belief) and Article 10 (freedom of expression) had been breached.

The discrimination claims (a quick explainer)

  • Direct discrimination: this occurs when person A treats person B less favourably than they would treat others in similar circumstances (ie. with the same qualifications) because of a protected characteristic (eg. age, race, religion or belief, disability, sex, pregnancy or maternity, sexual orientation, marriage or civil partnership and gender reassignment);
  • Indirect discrimination: this occures where an employer, without justification, applies a policy to the workforce looks neutral (eg. a minimum height requirement) but leads to unfair outcomes that put persons who share a protected characteristic (ie. women) at a particular disadvantage when compared to others without such characteristic (ie. men);
  • Victimisation: this is a technical legal term which refers to persons being subjected to a detriment because they have done a ‘protected act’ in good faith, such as raising a complaint or a Tribunal claim of discrimination. Victimisation aims to protect discrimination complainants from unlawful reprisals by their employer.

 

The Employment Tribunal claim

The Tribunal rejected the Claimant’s direct discrimination claim. The reason why the NHS TDA terminated the Claimant’s role was because of the manner in which he had expressed his religious views, not because of the religious views themselves. The case law affirmed that this was a valid distinction to draw.

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It was the Claimant’s press appearances, without notice to his employer and contrary to management instructions, that led to his disciplinary and termination as a NED.

Article 9(2) of the ECHR was not engaged because the Claimant’s media appearances were not ‘intimately linked‘ to his religion or beliefs. While in some cases Article 9 might protect a person’s right to persuade others of their belief system, the Claimant’s conduct went further than that.

Even if Article 9 was engaged, the Claimant’s actions conflicted with the protection of health and the rights of others, and therefore his Article 9 rights were qualified. The LGBT community were disproportionately affected by mental health issues and experienced difficulty engaging with the Trust’s services. The Claimant’s actions did not help the NHS to overcome these difficulties.

As for indirect discrimination, the Tribunal found that there was insufficient evidence that Christians were being disadvantaged by the NHS TDA’s policy of prioritising the confidence of the LGBT community when assessing a manager’s suitability for office. In any event, the policy was justified for the same reasons that the Claimant’s rights under Article 9 were qualified. Article 10 added nothing to his claim and was subject to similar analysis.

On victimisation, while the Claimant had established that his complaints of discrimination on grounds of his religion or belief amounted to a ‘protected act‘, the NHS TDA’s sanctions against him were not caused by his protected act but by the manner in which the Claimant expressed his views.

(The Claimant’s separate claims against the Lord Chancellor and Lord Chief Justice were also dismissed in the ET, for similar reasons, including the fact the Magistracy would have dismissed him for acting as he did, even if he was of a different faith, or none).

The Employment Appeal Tribunal proceedings

The Claimant appealed to the EAT on the grounds that:

  1. On the direct discrimination claim, the ET should have compared the Claimant’s treatment to how the employer would have treated a person who gave media interviews in favour of same-sex adoption;
  2. On the indirect discrimination claim, the ET failed to apply the appropriate test for group disadvantage;
  3. On the victimination claim, the ET erred by separating the Claimant’s statements to the media and the manner in which he made the statements.

The President of the EAT, Mr Justice Choudhury, sitting with two lay members, dismissed the Claimant’s appeal in somewhat scathing terms.

On the first ground, the Claimant had not challenged the ET’s finding that the reason for his termination was the manner in which he expressed his beliefs (and the impact of his actions on the Trust and its service users), rather than the beliefs themselves. In deciding whether a person has discriminated because of a protected characteristic, it is well established that a Tribunal should consider the mental processes of the alleged discriminator in this way.

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The ET had taken the right approach and was not obliged to construct a hypothetical comparator (particularly not one along the lines the Claimant suggested) in light of the ET’s findings on the ‘reason why‘ the employer acted as it did. In any event the NHS TDA would have treated a non-Christian person who had spoken to the press in breach of instructions and with such negative impact on its service users in exactly the same way.

The case law on Article 9 of the ECHR did not assist the Claimant because his actions in speaking to the press were not ‘intimately linked‘ to his religion or belief. Put bluntly:

…the Claimant did not need to give interviews or to make the remarks that he did in order to manifest his faith.

On indirect discrimination, the Tribunal was entitled to require the Claimant to demonstrate that Christians as a group were disadvantaged by the employer’s policy. Nothing in the Article 9 case law supported the Claimant’s argument that it was not necessary to show group disadvantage where Article 9 was engaged.

Lastly, on victimisation, the EAT rejected the Claimant’s argument that the ET had improperly separated what the Claimant had said about his beliefs and the manner in which he had expressed them. This was not a case where the employer was seeking to abuse the concept of ‘separability‘ (for example by arguing that the Claimant had complained of discrimination in an intemperate manner). The tone of voice used by the Claimant was not the problem – it was his failure to follow instructions and to consider the negative impact of his remarks on a vulnerable group in society that the NHS needed to engage.

(In a separate decision, the EAT dismissed the Claimant’s appeal against the ET’s judgment in the Claimant’s victimisation claim against the Magistracy, primarily because the Claimant had been dismissed from the Magistracy because his actions undermined his impartiality and the judiciary as a whole).

Comment

Page highlights the importance of employers taking well-reasoned decisions prior to disciplinary procedures or dismissals where employees may seek to rely on a protected characteristic or make complaints of unlawful discrimination.

A key battleground in these cases is ‘separability‘. While Tribunals are usually sceptical towards such defences, the question to ask (in direct discrimination and victimisation claims) is whether the reasons for the employer’s actions can be genuinely and properly separated from the employee’s religion, belief or protected complaint/s of discrimination.

The case also provides a helpful reminder for employers facing indirect discrimination claims of the need to demonstrate by reference to objective evidence how and why the rights of others should be upheld over the freedoms of the employee.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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