Page v Lord Chancellor & Anor

For victimisation under section 27 of the Equality Act 2010, a protected act under section 27(2)(d) requires an allegation that another person contravened the Act. Context may assist, but it does not make every statement made during a discussion of discrimination an allegation.

The statutory question is why the respondent acted. It is not resolved by but for causation. A tribunal may find that a respondent acted because of a feature properly separable from a protected allegation, provided it carefully guards against disguising action taken because of the allegation itself.

A judicial office-holder may be disciplined for conduct which reasonably indicates predetermined bias and threatens judicial impartiality. Article 10 may not be engaged where the action concerns the holder's ability to perform judicial functions; in any event, a proportionate restriction to maintain judicial impartiality may be justified.

The claimant, a lay magistrate and practising Christian, was removed from office after publicly stating that adoption by a man and a woman was preferable. The disciplinary process found that his statements could lead a reasonable person to conclude that he would be biased against same-sex adopters.

The London South Employment Tribunal dismissed claims including discrimination, victimisation, and claims based on Articles 9 and 10 of the European Convention on Human Rights. On appeal, only victimisation was challenged. The claimant contended that the BBC broadcast was a protected act, that its elements could not properly be separated, and that Article 10 required a different construction and outcome.

The central issues were whether the broadcast contained an allegation under section 27 of the Equality Act 2010, why the respondents acted, and whether the claimant's removal impermissibly restricted freedom of expression.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant's own broadcast words did not constitute a protected act. They expressed his view of what was best for a child, but did not allege that either respondent had contravened the Equality Act 2010. The wider broadcast could contain an implied allegation of religious discrimination, but the Tribunal was entitled to analyse that material separately rather than treating the broadcast as indivisible.

2. The question under section 27 was whether the respondents acted because of a protected act: why they acted, or what their motivation was. It was not a simple counterfactual question of whether the claimant would have been removed but for the broadcast.

3. The Tribunal correctly applied Martin v Devonshires Solicitors. It was entitled to find that the reasons for disciplinary action were properly separable from any protected allegation: the claimant's disregard of advice on media contact, the risk of bringing the judiciary into disrepute, and his public indication that he would approach same-sex adoption with a predetermined bias contrary to the judicial oath. Those findings concerned conduct incompatible with judicial office, rather than the making of an allegation of discrimination. The caution against artificial separation did not prevent that conclusion on these facts.

4. Article 10 was not engaged because the respondents acted for reasons going to the claimant's ability properly to discharge judicial functions, rather than exclusively or preponderantly because he expressed a view. Alternatively, the removal was a proportionate and necessary restriction. Judicial office-holders must exercise restraint where public statements may call judicial authority or impartiality into question. The claimant was not sanctioned merely for speaking on a controversial subject, but because his statements could reasonably create a perception of bias against a class of prospective adopters.

• Employment Appeal Tribunal: Appeal dismissed: [2019] UKEAT 0304_18_1906.
• London South Employment Tribunal: Dismissed the claimant's complaints of discrimination, victimisation and related Convention and Charter claims. No citation was stated in the judgment.