Non-executive director removed from NHS Trust for expressing views on adoption was not discriminated against

Court of Appeal decision highlights careful balance between freedoms and limitations of expression.

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 subsequently appealed the decision and this matter has now been heard alongside his parallel appeal against the EAT decision in respect of him losing his position as a magistrate.

Case: Page v NHS Trust Development Authority

An outline of the facts in the case is available from our 2019 article ‘Was a Christian NHS Trust Director discriminated against for expressing his views on same-sex couple adoption?’. Mr Page appealed the EAT’s decision on broad grounds, contending that the EAT had been wrong to uphold the original tribunal’s decision that the actions of the Trust had not been directly or indirectly discriminatory or amounted to harassment or victimisation. In addition, he appealed against the findings that his rights under the European Convention on Human Rights (ECHR) were not infringed.

The Court of Appeal concluded that the EAT and original tribunal had been right to find that there was a non-discriminatory reason for the Trust to suspend and then not reinstate Mr Page as a non-executive director. The issue was not Mr Page’s particular beliefs but the way in which he engaged with the media, particularly because Mr Page had failed to notify the Trust of the loss of his role as a magistrate and the subsequent media exposure which followed. This was compounded by the fact that Mr Page failed to discuss proposed media appearances with the Trust after the Trust had asked him to do so.  The decision was also based on the Trust’s concern that Mr Page’s views could impact on the Trust’s ability to engage with the local LGBTQ community, in contravention of its equality duty.

On the issue of whether the actions against Mr Page had infringed his Article 9 (freedom of thought, conscience and religion) and 10 (freedom of expression and information) rights under the ECHR, the court highlighted the important difference between the freedom to hold these beliefs and the freedom to manifest them.  The Articles themselves are clear that the extent to which beliefs could be manifested was limited.

In this case, the court determined that the issue of whether Mr Page had in fact manifested his beliefs by giving interviews was moot because Mr Page’s right to do so was clearly subject to limitations in the interests of health or morals, as was established in this case due to his role as a non-executive director in an NHS Trust with obligations to engage the LGBTQ community.

All grounds of appeal were dismissed.

Comment

Possibly out of concern for how its decision may be seized by certain groups, the lead decision in this case took time to set aside the legal issues at hand and address the broad argument put forward by Mr Page’s barrister.

The court was keen to highlight that by denying this appeal, it did not follow that it would become impossible or more difficult for Christians holding traditional views about sexual identify and morality to hold any kind of public office, as had been argued, and that this case was not about Mr Page’s beliefs but the limits on his public expression of them in the specific context of his case.

The court opined that it was true that Christians should not be expected to remain silent about their beliefs simply because they may be unpopular or offensive to others, and therefore potentially embarrassing to their employer. However, the court stressed that it is clearly the case that the freedom to manifest those beliefs was not unlimited and there will be circumstances in which it is right to expect those with genuinely held beliefs to accept some limitations on how they express them, particularly on sensitive matters. This will be especially so for those who work in public institutions and/or in senior positions because of the impact expressing those views may have on the public perception of the institution.

For this reason, such cases will continue to be determined on their specific facts and, where ECHR rights to freedom of manifesting beliefs and religion are concerned, there will always be the need to properly weigh and assess the degree to which those rights are engaged and the associated freedoms are restricted.