Can a Non-Executive Director’s public expressions of their so-called Christian beliefs be lawful reason to dismiss them? Page v NHS Trust Development Authority [2021] EWCA Civ 255
This analysis looks at the second case in the recent Court of Appeal saga of Mr Richard Page. An analysis of the first case which the Court looked at can be found here. That case involved Mr Page’s dismissal from the magistracy; this case involves his dismissal as a Non-Executive Director from Kent and Medway NHS and Social Care Partnership Trust (“the Trust”).
Factual background
Mr Page was removed as a magistrate after appearing on BBC Breakfast, in an interview including his belief that same-sex couples adopting could never be in the best interests of the child. This interview was not known to the Trust, but Mr Page’s other media statements in newspapers resulted in a complaint to the Trust from the Chair of its LGBT Staff Network.
The Trust learned about Mr Page’s removal as a magistrate and arranged a meeting with him. In the meantime, and without any prior warning to the Trust, Mr Page appeared on Good Morning Britain, giving an interview about his removal from the magistracy. In that interview, Mr Page stated that he did not agree with same-sex marriage, nor did he ever think that same-sex adoption could be the best for a child.
Dismissal by the Trust
The Trust initially suspended Mr Page, and then wrote to him to advise him that his appointment as a Non-Executive Director would not be in the interests of the Trust. Mr Page brought four claims to the Employment Tribunal (of which three remained live). These were:
- Direct discrimination;
- Indirect discrimination; and
- Victimisation.
Direct discrimination
To show direct discrimination, a Claimant must show that, because of a protected characteristic, the Claimant has been treated less favourably than their employer would treat others. Mr Page alleged that, as a result of his Christian beliefs, he was treated less favourably than someone who didn’t hold those beliefs would have been treated.
The Tribunal, however, found that the Trust’s actions had not been as a result of Mr Page’s beliefs, but because he accepted invitations to appear in the media interviews, without telling the Trust first when he had been expressly told to inform them, and his expression in those interviews of his views about homosexuality. The Court of Appeal agreed with the Tribunal and dismissed this ground of appeal.
Indirect discrimination
To show indirect discrimination, a Claimant must show that a provision, criterion or practice (PCP), which is discriminatory in relation to a relevant protected characteristic of the Claimant’s, has been applied to them.
Mr Page claimed that the Trust, in its appointments and retention of Non-Executive Directors:
- Considered expressing a critical view of same-sex adoptions as having a negative impact on the trust;
- Gave a high priority to securing the approval of the ‘so-called LGBT community; and
- Gave greater weight to the views of the LGBT community than to the views of Christians.
The Tribunal concluded, and the Court of Appeal agreed, that the first and third claims did not amount to PCPs, and the second did not disadvantage Christians as a group.
Victimisation
Much as in the magistracy case, the Court of Appeal concluded that he had not been disciplined for protected acts (i.e. alleging discrimination), but that he had, without prior notice to the Trust, given media interviews in which he expressed views about same-sex adoption and homosexuality more generally which were liable to impact on the Trust’s ability to engage with gay service-users.
The appeal was dismissed.
Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/255.html