Page v NHS Trust Development Authority

For direct discrimination, the tribunal must identify the actual reason why the respondent acted. Where it finds non-discriminatory reasons as facts, it need not construct a hypothetical comparator. A distinction may validly be drawn between religious belief and the manner in which it is publicly expressed.

An indirect discrimination claim under Equality Act 2010, section 19 still requires cogent evidence of group disadvantage. Article 9 may affect justification where engaged, but it does not remove that statutory requirement. For victimisation, conduct may be treated as separable from protected allegations where the employer acted for distinct reasons, such as breach of instructions and the likely effect of public conduct on the service and those it serves.

A practising Christian was a Non-Executive Director of an NHS trust and a family magistrate. Following public media interviews concerning his faith-based views on same-sex adoption, and his removal from the magistracy, the respondent suspended him and decided not to renew his appointment.

The Employment Tribunal dismissed claims of direct and indirect religious-belief discrimination, victimisation and harassment. It found that the respondent acted because of the manner of the claimant's media engagement, including his failure to comply with instructions and its effect on confidence in the trust, rather than because of his beliefs.

The claimant appealed on direct discrimination, group disadvantage in indirect discrimination, and victimisation. The central issue was whether the Tribunal had erred in treating the respondent's reasons as distinct from religious belief and protected allegations of discrimination.

1. Appeal dismissed. The Employment Tribunal made clear factual findings that the respondent acted because of the claimant's public media conduct, his failure to inform the trust as instructed, and the anticipated effect on the trust's ability to serve its community. Those were findings about the actual reason for the treatment. They were not challenged as perverse and did not relate to the claimant's religious belief.

2. The Tribunal correctly used the reason why approach to direct discrimination under Equality Act 2010, section 13. A comparator is not mandatory where the Tribunal has found the non-discriminatory reason for treatment. In any event, the appropriate comparator would be a person, without the claimant's religious belief, who engaged with the media contrary to instructions and whose remarks were likely to damage the trust's engagement with its community.

3. Article 9 did not assist the claimant. The required close and direct nexus concerns the religious adherent's own act said to manifest belief; it does not determine the alleged discriminator's reason for acting. The instruction to inform the trust before media engagement, and the expectation that the claimant would not make remarks likely to undermine the trust's work, did not interfere with manifestation of his faith. Article 10 added nothing material.

4. The indirect discrimination claim failed because there was no cogent evidence that the relevant PCP put persons sharing the claimant's belief at a particular disadvantage, as required by section 19(2)(b). Mba confirmed that Article 9 cannot be used to read that requirement out of the statutory claim. Article 9 is relevant, where engaged, at the justification stage.

5. The protected allegations against the Lord Chancellor and Lord Chief Justice played no part in the respondent's decisions. The reasons relied on were properly separable from those allegations. They concerned breach of instructions and the impact of the claimant's public conduct, not the tone or content of a protected allegation.

• Employment Appeal Tribunal: appeal dismissed: [2019] UKEAT 0183_18_1906.
• Employment Tribunal (Croydon): dismissed claims of direct and indirect discrimination, victimisation and harassment arising from the non-renewal of the claimant's Non-Executive Director appointment.