In the case of Page v NHS Trust Development Authority, an Employment Appeal Tribunal (EAT) had to consider whether an NHS Trust had acted in a discriminatory manner by not renewing the contract of a non-executive director (NED), after he made religious based comments regarding the adoption of children by same-sex couples.
Page v NHS Trust Development Authority
Case background
Mr Page (the Claimant) began working for the NHS in June 2012 on a fixed term 4 year contract as a NED of the Kent and Medway NHS and Social Care Partnership NHS Trust (the Defendant). He was also a lay magistrate. The Claimant is a practising Christian and believes that every child should be brought up by a mother and father, and that it is ‘not normal’ to be adopted by a same sex couple or an individual.
In July 2014, the Claimant, in his role as a lay magistrate, was on a panel with two other magistrates where they had to consider the adoption application from a same sex couple. Mr Page opposed the application and expressed his belief to his fellow magistrates and the Court clerk in relation to same sex couples adopting a child. This opinion was not shared by his colleagues, who complained about them and consequently the Claimant was reprimanded by the Lord Chancellor and Lord Chief Justice. The disciplinary action was for letting his religious opinions influence his objection to the adoption application and for ignoring the supportive evidence relating to it. This amounted to serious misconduct.
The Claimants actions and the subsequent disciplinary action was reported in the media and Mr Page challenged the reprimand and re-stated his religious views in interviews to local and national media. Despite the media interest, the Claimant did inform the NHS Trust of what had taken place.
When the NHS Trust did find out, they informed the Claimant that expressing these views could undermine confidence in relation to their commitment to equality to the Lesbian, Gay, Bisexual and Transgender (LGBT) community. Additionally, the Trust informed Mr Page that his failure to keep them informed of what had happened was not acceptable and that he should inform them of any further media engagements.
Whilst the Claimant admitted that he should have informed the NHS Trust of what had happened, he was unapologetic regarding the re-affirmation of his religious based views that he expressed via media interviews.
Following this, Mr Page gave further interviews, including going on BBC Breakfast News, which he did not inform the NHS Trust of. These media engagements then led to the Claimant being removed from the magistracy for serious misconduct by the Lord Chancellor. The following day, Mr Page then appeared on Good Morning Britain, where he once again re-stated his views in relation to same sex adoption, and also objected to same sex marriage and homosexuality, in general. Once again, he did not inform the NHS Trust of this interview, prior to it taking place.
The Trust then decided that Mr Page should no longer remain in his role as an NED and informed him that they would not renew his term of office in June 2016. This was due to his:
- Interview on Good Morning Britain after he was removed from the magistracy.
- Continued media interviews and their apprehensions in relation to them, which they believed would likely have a negative effect on the confidence of the Trust’s staff and the perception of the general public.
After Mr Page was informed of the NHS Trust’s decision, he began legal proceedings against them on the grounds of direct and indirect religious discrimination, harassment related to religion and victimisation.
Employment Tribunal (ET) ruling
The ET dismissed Mr Page’s claim due to a variety of reasons, including:
- The manner in which he restated his views via media interviews without informing the Defendant, after they had informed him to do so.
- The NHS 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 when they evaluated the Claimant’s suitability for employment.
Mr Page then appealed the decision of the ET.
EAT judgment
Direct discrimination
The EAT rejected Mr Page’s argument that the ET was in error in failing to identify an appropriate comparator. Where, as here, the tribunal has made clear findings of non-discriminatory reasons for the treatment alleged, there can be no criticism of it for not constructing a hypothetical comparator. In any event, an appropriate comparator would have been one who, for reasons unrelated to religious belief, spoke to the media against the Trust’s instructions, and whose remarks would have been likely (by reason of indicating bias or a lack of impartiality) to have a negative effect on 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 Authority in precisely the same manner as Mr Page.
With respect to Article 9, the instruction not to engage with the media without informing the Trust and the Trust’s expectation that Mr Page would not make remarks which would be likely to diminish its ability to engage with a section of the public, do not interfere with Mr Page’s ability to manifest his belief. He did not need to give interviews or to make the remarks that he did in order to manifest his faith.
Indirect discrimination
The EAT rejected Mr Page’s argument that where Article 9 is engaged, there is no need to establish group disadvantage. In Mba v Merton LBC, the Court of Appeal took the view that group disadvantage is an essential element of the test for indirect discrimination. The fact that Article 9, which is not directly enforceable in the ET, does not require group disadvantage is of no help to Mr Page for his indirect discrimination claim, not least because the ET concluded that Article 9 was not even engaged.
On the footing that there was a need to establish group disadvantage, the ET was entirely correct to consider whether Mr Page had done so and was entitled to conclude that he had not.
Victimisation
With respect to Mr Page’s victimisation claim, the question was whether his suspension, the following investigation and non-renewal of his term were done because he had carried out protected acts (the numerous occasions when he alleged that he had been discriminated against). Mr Page argued that the ET had not adequately analysed this point, and that the things he said and the manner in which he said them were so intertwined as to make it impossible to distinguish one from the other.
However, the EAT rejected this saying that it was clear that the reasons relied upon by the Authority for taking the steps that it did were properly separable from the allegations of discrimination which he made against the Trust and the Lord Chancellor in relation to his magistracy. The Authority’s reasons were not about the tone, but about the failure to consider the potential impact of his remarks on vulnerable sections of the public with which the Trust needed to engage.
Comment
There is no surprise in this decision, but the tension between religion and sexual orientation in discrimination claims continues. The main argument used by Mr Page was that it is too artificial to distinguish between simply having a particular view and the manner in which the individual expresses it. In this case, it was sufficiently easy for the Trust to make the distinction. It wasn’t that he had the views, it was the fact that he repeatedly contacted the media having been told repeatedly that he should not.
However, one wonders what would happen in a case with similar facts where the individual expressed their opinions in private, were overheard and it then becomes public.
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