On 19 June 2019, the Employment Appeal Tribunal handed down two separate judgments relating to the same appellant, Mr Richard Page: Page v Lord Chancellor & Anor  UKEAT 0304 18 1906 and Page v NHS Trust Development Authority  UKEAT 0183 18 1906. The appeals related to Mr Page’s religious beliefs in relation to his position as a magistrate and as a Non-Executive Director of an NHS Trust, respectively; and the EAT dismissed the appeals in both cases. From the legal perspective, the two cases were not “linked” as such because there was no cross-referencing between them. However, the action taken by the Lord Chancellor’s Department resulted, indirectly, in action being instituted by the NHS, and the following note relates to both judgments.
Paragraphs referred to in the two judgments are distinguished by the prefixes “LC” and “NHS”.
Mr Page, a practising Christian, was a lay magistrate sitting on family cases involving adoption decisions. As a matter of religious belief, he regarded it as abnormal for a child to be adopted by a single parent or a same-sex couple. In 2014, when sitting on a panel hearing a same-sex adoption application concerning a young child, he had told his fellow magistrates that he had a problem with a same-sex couple adopting the child, even though the adoption was unopposed and there was a comprehensive report from a social worker in support [LC 5]. Furthermore, he had said so publicly in media interviews [NHS 10 & 13], perhaps most notably in an interview in March 2015 on BBC Breakfast News, in which he had stated that “My responsibility as a magistrate, as I saw it, was to do what I considered best for the child and my feeling was therefore that it would be better if it was a man and a woman who were the adopted parents” (the “Broadcast Words”) [LC 13 &14]. As a result, he was disciplined and, finally, removed from the Magistracy in March 2016.
As a Non-Executive Director of an NHS Trust, he had accepted before the Employment Tribunal that the standards expected of him by the Trust included obligations to:
“uphold the provisions of the Equality Act 2010 that prohibit discrimination on grounds of sexual orientation, including in relation to adoption … promote equality for LGBT members of the community … [and] resolve any conflicts arising from his personal interests, including his religious beliefs, that could influence or be thought to influence his decisions as a Board member.” [NHS 3].
The disciplinary action against him as a magistrate was reported in the Mail on Sunday and the Daily Mail Online in January 2015. The latter report referred to him as “an experienced NHS manager”, though it did not identify the Trust specifically [NHS 6].
Mr Page did not tell the Trust or the Development Authority about the disciplinary action taken against him in relation to his position as a magistrate or about his contact with the media and he subsequently took part in a live radio phone-in on Radio Kent about which the Trust was not informed. He was suspended by the Trust, a Termination of Appointments Panel decided that it was not in the interests of the Health Service for him to continue to serve as a Non-Executive Director, and his appointment was not renewed [NHS 16]. He issued claims of discrimination (direct and indirect) because of religious belief and victimisation. The Employment Tribunal dismissed the claims against the NHS Trust, concluding that he had been dismissed not because of his beliefs but because of the manner in which they had been expressed, holding in paragraph 52 of its judgment that:
“Article 9(1) of the ECHR gives absolute protection for a person’s right to freedom of thought, conscience and religion. That is not in issue here. Although the Claimant contends that action was taken against him by the Respondent because of his beliefs, the tribunal rejects that contention. The Respondent acted as it did because of the manner in which the Claimant expressed his beliefs. As discussed further below in the context of the direct discrimination claim, a valid distinction may be drawn between an individual’s religion and/or beliefs and the way in which they express that religion and/or those beliefs. This is clear from a consistent body of authority (both pre- and post-Eweida in the ECtHR).” [NHS 18]
Page v Lord Chancellor & Anor
The grounds of appeal were as follows:
“In considering the Issue of the ‘severability’ of parts of the protected acts as defined in section 27 of the Equality Act 2010, and required by Martin v Devonshire  the Tribunal a. failed to analyse fully why the protected act was severable, b. misapplied Martin v Devonshire, c. failed to correctly apply Article 10 of the ECHR (to make a public statement) as required by s.3 of the HRA 1998″ [LC 33].
(In Martin v Devonshire, the Tribunal had had to consider whether an employee had been dismissed by reason of a protected act in circumstances where she had brought persistent and unfounded grievances complaining of harassment and victimisation against her employer.)
Page v NHS Trust Development Authority
There were six grounds of appeal in Page v NHS Trust Development Authority and permission was granted to proceed only on three of them: direct discrimination, indirect discrimination and victimisation:
“Ground 1 – the Tribunal misdirected itself in relation to the ‘reason why’ approach to direct discrimination in that it failed to identify any appropriate comparators. The Claimant contended that an appropriate comparator was a person who gave similar interviews to the media but spoke in favour of same-sex adoptions rather than against them.
Ground 2 – the Tribunal erred in its approach to the test of group disadvantage for the purposes of determining the complaint of indirect discrimination and failed to construe relevant Strasbourg authority correctly.
Ground 3 – The Tribunal erred in its analysis of the Claimant’s victimisation claim in that there were insufficient findings in respect of the protected act(s) and a failure to find that the ‘manner’ in which the Claimant made his statements to the media was not properly separable from the making of statements, which were clearly protected acts as they included allegations of discrimination against the Respondent” [NHS 29-30].
Page v Lord Chancellor & Anor
It was argued that the Employment Tribunal had erred in treating only part of Mr Page’s remarks during the BBC broadcast as a “protected act” under s.27 Equality Act 2010 and that the comments made by and attributed to him during the broadcast amounted to an allegation of discrimination against him and ought to have been treated as such in their entirety [LC 35]. The test for determining whether something was done because of a protected act was simply one of “but for” causation – and, it was argued, had the words not been spoken he would not have been removed: further, because there was no suggestion that his comments were made in bad faith, his removal was a clear instance of victimisation [LC 36]. It was also argued that, though members of the judiciary had to show restraint in manifesting their right to freedom of speech under Article 10 ECHR, his comments during the BBC broadcast fell well within the latitude conferred by Strasbourg case law on members of the judiciary exercising that right [LC 37].
The EAT concluded that the Tribunal had been correct to conclude that the “Broadcast Words” had not amounted to a protected act [LC 45]. Nor had the Tribunal misapplied Martin v Devonshire in concluding that the reasons for the Respondents acting as they did were properly separable from the protected act. The Tribunal had not erred in finding that the Broadcast Words were separable from the remainder of the Broadcast (in which the Claimant was reported to have said that he found it “hard that his religious beliefs as a Christian were seen as prejudice”) which did constitute a protected act [LC 51]. There were also the issues that the negative publicity generated by Mr Page’s conduct could bring the judiciary into disrepute [LC 53] and that his remarks suggested that he did not intend to abide by his judicial oath [LC 55]:
“His statement that it was his responsibility as a magistrate to do what was best for the child and that it was better if it were a man and a woman to be adoptive parents, does suggest that he would regard an adoption by parents who did not fit that mould less favourably, irrespective of the evidence before the Court and/or the law. That, in our judgment, is potentially a very serious flouting of the judicial oath. It is a matter which is quite properly separable from the complaints being made by the Claimant. The position can perhaps be compared to an employee who, in the course of making a relevant allegation reveals that he has, or is about to breach some other important rule imposed by the employer. An employer who takes action to deal with the breach or proposed breach would be doing so because of that breach and not necessarily because of the protected act, although obviously the Tribunal would have to be careful to ensure that action relating to the breach was genuinely and properly separable from the allegation. We would add that … it would be surprising if a judicial office holder, having publicly declared an apparently pre-determined and biased approach against a potential group of adopters, could be shielded from any form of action to address impartiality merely because that declaration was made in the context of a protected act” [LC 55: emphasis added].
As to the argument that his Article 10 rights had been traversed:
“the Tribunal did not err in concluding that the Claimant’s removal from the Magistracy was a proportionate limitation upon his right to freedom of expression and as such would be regarded as necessary in a democratic society for maintaining the authority or impartiality of the judiciary” [LC 68].
Further, it had not been Mr Page’s views on same-sex adoption which either “exclusively or preponderantly” prompted his removal, but “the clear indication emerging from those views that he would not be impartial in any adoption decision where same-sex adopters were involved”. It was therefore correct to say that, in the circumstances of this case, Article 10 was not engaged at all [LC 72].
Page v NHS Trust Development Authority
In Page v NHS Trust Development Authority, as to Ground 1 there had been a specific and genuine concern on the part of the Trust about the impact of Mr Page’s actions on its ability to serve the entire community in its catchment area – which answered the “reason why” question that the Tribunal had been required to ask itself: “None of them were found to relate to the Claimant’s religious belief. These conclusions are all findings of fact which are not challenged by the Claimant on the grounds of perversity or otherwise” [NHS 33]. Further, there was no warrant for treating the conclusion in Thlimmenos v Greece  ECHR 162 as authority for the proposition that, in order for Article 9 to be engaged, all that was required was that an act had been “prompted” by religious belief [NHS 39].
As to Ground 2, the Tribunal had been entitled to decide that Mr Page needed to establish group disadvantage and the conclusion that he had not done so was not perverse or otherwise unsound [NHS 49].
As to Ground 3, while it was not in dispute that there had been protected acts [NHS 51], the various reasons relied upon by the Trust for taking the steps that it did were properly separable from the allegations of discrimination which Mr Page was making against the Lord Chancellor and the Lord Chief Justice [NHS 53]:
“There is no suggestion here that the Respondent was seeking to abuse the argument of separability or that the Tribunal reached conclusions that were perverse or unsupported by the evidence. Insofar as the Tribunal referred to the manner in which the Claimant gave his interviews, the Tribunal was not thereby referring to the tone which he adopted in doing so. Clearly, a Tribunal would exercise great caution before treating as properly separable from the making of the allegation, the fact that it was made in rather intemperate or outraged terms. An allegation of discrimination is often likely to arouse strong feelings in both the accused and the accuser, and it would diminish the protection conferred by the legislation if employers could take action against an employee with impunity just because an allegation was made adopting a tone to which the employer takes objection. However, in this case, the Respondent’s reasons for taking action were not about the tone, but about the failure to follow instructions and the failure to consider the potential impact of his remarks on vulnerable sections of the public with which the Trust needed to engage. In our judgment, the Tribunal’s conclusion that the protected acts played no part in those reasons is unassailable” [NHS 54].
Both appeals were dismissed.