Is opposition on grounds of conscience to adoption by same-sex couples protected by equality legislation and the ECHR? That was the issue before the Tribunal in Mr R Page v NHS Trust Development Authority  UKET 2302433/2016.
At the time of his appointment as a Non-Executive Director of the Kent and Medway NHS and Social Care Partnership NHS Trust, Mr Page was a lay magistrate. In July 2014, he had sat with two other magistrates as a family panel to consider an adoption application by a same-sex couple. The application was granted by the other two magistrates – a decision from which he dissented. The other magistrates and the clerk of the court complained about him following that case and he was subsequently reprimanded by the Lord Chancellor and the Lord Chief Justice: a statement was issued by the Judicial Conduct Investigations Office dated 30 December 2014 in the following terms:
“The Lord Chancellor and Lord Chief Justice have issued Mr Richard Page JP, a Magistrate assigned to the Central Kent Bench with a reprimand. Mr Page, whilst sitting in the Family Court, was found to have been influenced by his religious beliefs and not by the evidence. The Lord Chancellor and Lord Chief Justice considered that this amounted to serious misconduct and that Mr Page should have recused himself from the matter” [11.10-11.12]
Mr Page then gave media interviews about his position and took part in a live radio phone-in with Radio Kent.
On 3 February 2015, the Chair of the NHS Trust’s LGBT Staff Network made a formal complaint to the Trust. It referred to the views expressed by Mr Page in the media and said, inter alia, that his opinion was “highly offensive” to same-sex parents and, if left unchallenged, would bring the Trust into disrepute with the LGBT community and society in general [11.19].
On Monday 14 March 2016, Mr Page was interviewed by ITV News and Good Morning Britain. During the latter, the following exchange took place:
Interviewer: “You don’t agree with same-sex marriage?”
Page: “I do not agree with same-sex marriage”
Interviewer: “You don’t agree with same-sex adoption?”
Page: “I do not see that could ever be the best for the child: that is my responsibility” [11.29].
He had not informed the Trust that he intended to engage again with the media [11.30].
He was suspended as a Non-Executive Director of the Trust on 21 March 2016 and when his fixed-term appointment ended on 12 June 2016 he was not reappointed. A Termination of Appointments Panel (‘TAP’) hearing took place on 2 August 2016 and its decision, that his appointment would not be renewed, was communicated to him by letter dated 19 August.
Mr Page argued that he had suffered three detriments: his suspension, a subsequent investigation initiated by the respondent and the decision of a Termination of Appointments Panel. He further argued that each detriment:
- had been an act of direct discrimination because of his religion and/or belief, relying on his Christianity and his belief that it was always in the best interests of a child to be brought up by a mother and a father;
- had also amounted to indirect discrimination;
- had been harassment because it was unwanted conduct related to his religion or belief that had the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him; and
- was an act of victimisation because of a series of protected acts .
He claimed that the decision not to reappoint him was victimisation related to protected acts: namely, the media interviews in which he had said that the Lord Chancellor and the Lord Chief Justice had discriminated against him because of his religion or beliefs . He argued that his actions were protected by the Human Rights Act 1998, the ECHR and s.26 Equality Act 2010  – in particular, by Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) ECHR .
The Tribunal agreed that the specific belief on which he relied – that it was in the best interests of a child to have a mother and a father – fell within the definition of philosophical belief for the purposes of s.10 Equality Act 2010  – though in the same paragraph it also said that
“Had the belief relied on by the Claimant been the wider views expressed in his Good Morning Britain television interview in March 2016, ie 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.”
– which is by no means an uncontroversial statement, given that it is the settled opinion of (eg) the Roman Catholic Church and many other religious groups.
The Tribunal concluded that the action taken by the Trust had not been because Mr Page held or expressed his views as such, but because he had given interviews in the press and on national television without informing the Trust when he had been expressly told to do so:
“Expressing his views in that context was not something that the tribunal finds was intimately linked to his religion or his beliefs. There was, in the tribunal’s judgment, no sufficiently close and direct nexus between the act and the underlying belief. Article 9(2) was not, therefore, engaged” .
“… even if, contrary to the above finding, Article 9(2) was engaged, then the tribunal would have found, as the ECtHR did in Chaplin, Ladele and McFarlane … that his actions fell within the qualifications to Article 9(2) and there was therefore no breach of his ECHR rights. In the tribunal’s judgment, the Claimant’s 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 rights of others (two of the qualifications in Article 9(2)). The Trust is subject to the Public Sector Equality Duty under EqA, s149 which includes a duty to advance equality of opportunity and to foster good relations between persons who share and those who do not share a protected characteristic. The Claimant accepts that there were, and had been, specific issues with LGBT members of the community suffering disproportionately from mental health problems and also difficulty persuading them to engage with the Trust’s services. There had also been a specific complaint from within the Trust’s organisation concerning the Claimant’s actions. There is clear evidence that there was a specific and genuine concern on the part of the Trust and the Respondent as to the impact of the Claimant’s actions on the Trust’s ability to serve the entire community in its catchment area. Given the Claimant’s high profile role within the Trust, the tribunal finds that this concern was justified. The Claimant himself confirmed in evidence that although he did not think about the effect of his public statements on others … he accepted that those reading, listening to or watching his interviews might have made a connection with his role with the Trust and/or in the NHS in a wider sense and that could be damaging for the Trust or the wider NHS .
The tribunal finds that even if Article 9(2) was engaged, then any limitation placed on the Claimant’s Article 9 rights was necessary and proportionate in all the circumstances” .
As to his complaint under Article 10, the Tribunal could not see that it added anything to his argument under Article 9 . The claims were dismissed.
[With thanks to the National Secular Society for directing me to the decision.]
Christian Concern, whose linked Christian Legal Centre have been supporting Richard Page, have blogged this comment on the ET decision:
‘Employment Tribunal allows censorship of Christian beliefs
Richard Page announces that he will appeal, as Tribunal rules against him.
An Employment Tribunal has rejected Richard Page’s attempt to be reinstated as an NHS non-executive director.
But, supported by the Christian Legal Centre, Richard has announced that he will appeal the ruling, saying that the case is now “much bigger” than him.
Richard says that he is “very disappointed” by the outcome of the recent hearing but “determined to appeal”.
Andrea Williams has highlighted the importance of the case, saying:
“Richard was removed from office not for any misconduct in the ordinary sense of the word but simply because he dissented from a currently popular viewpoint.
“His beliefs about family life have nothing to do with the practical workings of the NHS but were simply out of step with the new ideological orthodoxy.
“The Tribunal claims that Mr Page was not being dismissed because of his views but because of where he expressed those views. But this is not a meaningful distinction, and amounts to a perverse attempt to silence Christian beliefs.
“What is really at stake here is the freedom to express Christian belief, and the Tribunal has failed to uphold that freedom.
“Is the NHS Trust really saying that people would have stopped using its services because they knew what Richard believed about marriage and family?”‘
“Is the NHS Trust really saying that people would have stopped using its services because they knew what Richard believed about marriage and family?”
I doubt it, because you don’t normally have a choice about which NHS Trust to use: it depends where you live. But I can see why the Trust might not want to reappoint a non-exec who had probably managed to offend a significant group of its potential clients.
We’ll see what happens if and when it goes to appeal.