Page v NHS Trust Development Authority

Employment Appeal Tribunal – June 2019 

The Employment Appeal Tribunal (EAT) has ruled that a director’s removal, after giving high-profile interviews on his religious opinion, was not religious discrimination.

Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion. Article 10 outlines that everyone has the right to freedom of expression.

The Equality Act 2010 protects against discrimination on the grounds of religion. The Act also instructs that a person victimises another person if they subject them to a detriment because they do a ‘protected act’. For the purposes of the legislation, a ‘protected act’ includes giving evidence or information in connection with proceedings under the Act, for example a discrimination claim.

FACTS

The claimant in this case, a practicing Christian, worked as a non-executive director within an NHS Trust on a fixed-term contract. He also served as a lay magistrate. Whilst conducting his duties as a magistrate, the claimant expressed the view that he was opposed to same-sex adoption. Following a reprimand by the magistracy, the claimant conducted several media interviews saying he had been unfairly treated due to his religious beliefs and reaffirming his objection to same-sex adoption.

Fearing reputational impact, a meeting was held between the Trust and the claimant. They informed him that his views on same-sex couples might be connected to his role in the Trust by readers and listeners. He agreed not to conduct any more media interviews without consulting them first. Despite this, the claimant took part in a televised interview on BBC News, where he reaffirmed his view that it would be ‘better’ if a man and woman were adoptive parents. He was eventually dismissed from the magistracy as a result.

The claimant went on to appear on more shows without disclosing his intention to do so to the Trust. He was eventually suspended by the Trust and later informed that it was not in the interests of the NHS for him to continue in his role. The claimant later brought claims to the employment tribunal (ET) against both the Trust and the Lord Chancellor/Secretary of State for Justice for direct and indirect religious discrimination and victimisation. In bringing his claims, he relied upon Articles 9 and 10 of the ECHR.

Although the claimant was ultimately unsuccessful in both cases, at the first instance and at appeal, this case summary primarily concerns the claims against the NHS Trust.

ET

The ET dismissed all three claims, finding that the claimant had not been dismissed because of his beliefs and that Articles 9 and 10 were not relevant to this issue.

In forming their decision, the tribunal held that there was clear evidence of a specific and genuine concern on the part of the Trust that how the claimant had expressed his beliefs could damage its overall reputation and have a negative impact upon its patients. The ET also found that the only practice undertaken by the Trust which placed the clamant at a disadvantage was the need to ensure the suitability of directors within it, which therefore had no connection to his religious beliefs.

The tribunal concluded that a valid distinction may be drawn between an individual’s religion and/or beliefs and the way in which they manifest that religion and/or those beliefs.

EAT

The claimant appealed against this decision to the Employment Appeal Tribunal (EAT). He argued that the tribunal had failed to establish whether someone who had committed his actions but who were not religious would have been treated any differently. He also stated that the actions of the Trust had been the result of him making a protected act, namely that he had spoken of discrimination on behalf of the magistracy following his dismissal there, which the tribunal had also failed to consider.

The EAT dismissed his claims. They held that the ET had been correct to find that the ‘reason why’ the claimant had been treated in this way did not relate to his religious belief. This was because he had deliberately spoken to the media without informing the Trust and had done so in the knowledge that his conduct could have an adverse effect on its reputation. The EAT concluded that there was little doubt a comparator in this situation would have been treated in a different way.

When considering the issue of a protected act, the EAT explained that the reasons for the Trust taking the steps that it did were properly separable from the allegations of discrimination being made against the magistracy. This was because their action was due to the claimant failing to follow their instructions and consider the potential impact of his remarks on vulnerable sections of the public. Therefore, the fact that his statements were protected acts played no part in their reasoning.

Note for employers 

This case reaffirms to organisations that a dismissal which concerns the inappropriate manifestation of a religious belief will not always be considered discriminatory. In these circumstances, much will depend on how the employee has expressed their belief and if this has resulted in an act of misconduct.

Despite this, organisations should be mindful that religion is a protected characteristic under discrimination law. An investigation into expressions of religion and belief should always be approached consistently. It should also clearly be specified what conduct the organisation wishes to discipline for.

« Back to News