Alex Bartlett explores the recent decision in Page v NHS Trust Development Authority which sheds further light on dismissal in the context of an employee’s freedom of religious expression. The Tribunal held that a Non-Executive Director was not discriminated against when an NHS Trust failed to renew his contract after he spoke out against the adoption of children by same-sex couples. Crucially, the Trust had based its decision on the manner of the employee’s objection, rather than the content.
Mr Page began his employment with the Trust on a fixed-term contract in June 2012, due to expire in June 2016. He is a practising Christian who considers that it is always in the best interests of a child to be raised by both a mother and father.
Mr Page was also appointed as a lay Magistrate in 1999. In 2012 Mr Page sat on a Magistrates’ panel to hear an adoption application made by a same-sex couple. He made comments to his fellow magistrates outlining his beliefs and was officially reprimanded after the other Magistrates reported his comments. The reprimand attracted media interest. Mr Page did not disclose the reprimand or the associated publicity to the Trust.
When the Trust found out, it warned Mr Page that public expression of his belief could undermine the public’s confidence in his ability to carry out his role and indeed confidence in the Trust as a whole. The claimant accepted that the Trust faced difficulties engaging members of the LGBTQ+ community with its mental health services and that such members suffered disproportionately from mental health problems. The Trust instructed him to inform it of any further media interaction.
Mr Page proceeded to make several high-profile media appearances without informing the Trust; including giving an interview to BBC Breakfast News during which he questioned whether same-sex adoption could ever be in the best interests of the child.
The Trust suspended him and informed him that his contract would not be renewed. It felt that Mr Page’s continued media appearances undermined the public’s and his colleagues’ confidence in his role. Mr Page was also removed as a Magistrate.
Mr Page brought employment claims against the Trust, including direct and indirect discrimination, alleging that he was dismissed because of his religious beliefs. The Employment, and later the Appeals Tribunal rejected his claim of direct discrimination; finding that he had been dismissed because of the manner of his promotion of his beliefs, rather than the beliefs themselves; particularly because he had accepted media invitations without informing the Trust after being told not to do so.
Regarding the allegation of indirect discrimination, both Tribunals did find that a provision, criterion or practice was established, namely, prioritising the views of the LGBTQ+ community in assessing suitability for the role. However, both found that there was no ‘group’ being disadvantaged by this. The Appeals Tribunal rejected Mr Page’s argument that it was not necessary to show group disadvantage when religious discrimination was alleged.
This decision may reassure employers that a dismissal is not automatically discriminatory because of a connection to religious belief. The freedom to hold a religious belief can be separated from the way in which a person expresses it. It is vital to evaluate every situation on its merits and it will always help if an employer can show it has forewarned an employee of the consequences of any behaviour.