No religious discrimination where director removed after expressing opposition to same sex adoption in media interviews

Speedread 

A Christian non-executive director of an NHS Trust who was removed from office after he expressed his opposition to adoption by same-sex couples in a series of media interviews has failed in his claims of religious discrimination.  The tribunal found that he had not been removed because of his beliefs but because he accepted invitations to appear in the press and on national television without informing the Trust, having expressly been told to inform them.

Facts

In Page v NHS Trust Development Authority, Mr Page was a non-executive director of an NHS Trust which provides mental health services. Both he and the Trust accepted that members of the lesbian, gay, bisexual and transgender (LGBT) community suffer disproportionately from mental health issues and that there had been an unwillingness from the LGBT community to engage with mental health services. The Trust argued that it was vital that its staff and board should not do or say anything that could risk losing the trust of any section of the community, including those in the LGBT community. 

Mr Page was a devout Christian and firmly believed that it is always in the best interests of every child to be brought up by a mother and a father and that it is ‘not normal’ to be adopted by a single parent or same sex couple. 

In addition to his role within the Trust, he had been a magistrate. In 2014, he was reprimanded for letting his religious beliefs, rather than the evidence, influence him when hearing an adoption application by a same-sex couple. In January 2015, he gave his first interview about the reprimand to the national press and was quoted as saying ‘there is something about a man, a woman and a baby, that it’s natural and therefore the others are not’. 

The Trust’s Chairman advised him that expressing his views in the media could undermine confidence that he would exercise his judgment in a way that was not affected by those personal views and that he should keep the Trust informed of any media interest. Despite this, he continued to express his views in the media without informing the Trust. In early 2016, his continuing engagement with the media resulted in him being removed as a magistrate. 

In August 2016, the Trust decided that it was not in the interests of the health service for him to continue in his role. Its reasons centred on his public response to the decision to remove him as a  magistrate, the events following that decision and its conclusion that his position in relation to those matters was likely to have a negative impact on the confidence of staff, patients and the public in general in him as a local NHS leader. 

Mr Page brought claims for direct and indirect religious discrimination, harassment and victimisation. 

Decision 

The employment tribunal dismissed his claims. 

There was no direct discrimination because Mr Page had not been removed from his post ‘because of’ his religion or 'because' he held or expressed his views that it was in the best interests of a child to have a father and a mother.  He was removed because he accepted invitations to appear in the press and on national television without informing the Trust, when he had been expressly told to inform them.  His victimisation claim failed for the same reason and his harassment claim failed because he had given no evidence of any alleged violation of his dignity.

There was no indirect discrimination either because the provisions, criteria or practices (PCPs) he relied on were conceptually unsound or were not applied to him and because he could not demonstrate group disadvantage. 

The Tribunal held that Article 9 of the European Convention on Human Rights (freedom of religion) was not engaged because Mr Page’s actions in giving media interviews were not ‘intimately linked to his religion or his beliefs’. Alternatively, any interference with his rights was necessary and proportionate, having regard to the fact that his actions were clearly in conflict with the protection of health (the Trust’s principal function) and with the protection of the rights of others.

Implications 

The case raises questions about the extent to which an employer can censor the expression of religious or philosophical beliefs outside the workplace and is a reminder that there will be no direct discrimination based on religion or belief where this is not the reason for the treatment. 

The case also addresses the issue of what constitutes ‘belief’ for the purposes of the Equality Act 2010. The Tribunal accepted that the belief Mr Page relied on (that it is always in the best interests of a child to have a mother and a father) is a belief that falls within the wide definition of philosophical belief for the purposes of the Equality Act 2010 (the Act). However, it commented that had the belief he relied on been the wide views he had expressed in one particular interview, that is 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 and therefore would not have constituted a belief for the purposes of the Act.