Magistrate was not victimised on grounds of his religious belief

Court of Appeal dismisses latest in series of cases brought by former magistrate.

In 2019 we highlighted a decision of the EAT that a former magistrate, Mr Page, had not been discriminated against for his views about same-sex marriage and adoption issues in relation to his loss of his role as an NHS Trust director. Mr Page’s claims against the NHS Trust have now been dealt with in the Court of Appeal – see our article ‘Non-executive director removed from NHS Trust for expressing views on adoption was not discriminated against’ for more on this.

That case formed part of a parallel challenge Mr Page has pursued through the employment tribunals against the NHS Trust in question and, separately, against the Lord Chancellor (LC) and Lord Chief Justice of England and Wales (LCJ) in respect of him losing his role as a magistrate.

As well as denying his claim against the NHS Trust, the EAT separately denied Mr Page’s appeal against an employment tribunal’s decision that he had not been discriminated against by the LC and LCJ when they decided to remove him from the magistracy. In this matter, Mr Page was granted leave to appeal on the issue of his claimed victimisation for expressing his religious beliefs. 

Case: Page v The Lord Chancellor and The Lord Chief Justice [2021]

The key question before the Court of Appeal was whether the employment tribunal and EAT were correct in their treatment of a televised interview Mr Page had engaged in with the BBC in 2015.  Mr Page argued that the tribunal and EAT had failed to properly characterise his words in the BBC piece as a ‘protected statement’ in which he was, in effect, stating he had been discriminated against for being a Christian. Importantly, during this interview, Mr Page expressed that he felt his duty as a magistrate was to act in the best interests of a child and that meant, in his view, avoiding placing a child with a single parent or parents of the same sex unless there was no other option.

Specifically, the Equality Act 2010 (EA2010) provides that a person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act or A believes that B has done or may do a protected act. A ‘protected act’ for these purposes includes making an allegation that A has contravened the EA2010 (for instance by alleging that A has acted in a discriminatory manner towards them).

‘Because’ in this context refers to the reason why the alleged victimiser acted in the way complained of, and it will be enough that the protected act was one of the reasons for the action taken by the victimiser.

The court found that Mr Page’s appeal on victimisation was not, in fact, made against a decision the EAT and tribunal had made because the tribunal had accepted that Mr Page made a protected statement in the wider context of the BBC piece. For this reason, the court dismissed the appeal as it found that the tribunal and EAT were right to find that Mr Page’s dismissal was because he had expressed personal biases which brought his impartiality into question which in turn caused concern that he was undermining public trust and confidence in the judicial system, and not because he had been subject to victimisation as a result of his interview on the BBC.

Comment

The full judgment gives a clear sense of the court’s frustration in respect of how Mr Page and his representatives went about making their claims and subsequently in how they had gone about particularising the grounds of appeal. The appeal was so fundamentally flawed that the panel of judges hearing the case did not ask the barrister acting for the LC and LCJ to appear before them.

Nonetheless, the comprehensive judgment of the court underlines the key to understanding whether or not an individual is victimised for having a protected characteristic.   

As had been clearly established in this case by the tribunal and reinforced by the EAT, the decision to discipline and ultimately remove Mr Page from his role as a magistrate was not ‘because’ he had claimed he had been discriminated against. Rather, actions were taken because Mr Page had expressed views which brought into question his ability to uphold his oath to fairly apply the law based on the facts in the case before him and disapply his own biases or beliefs.

This further underlines the importance of employers being clear about the grounds on which they take action against staff and being clear that this is non-discriminatory to protect themselves against discrimination claims.