Page v Lord Chancellor & Anor

Victimisation under section 27 of the Equality Act 2010 turns on the respondent’s operative reason for the detriment. A protected act need only be a significant part of that reason, but action taken in response to a complaint is not victimisation where the true reason is a genuinely separable feature of the complaint.

A judicial office-holder may hold sincere religious beliefs, but must decide cases according to the law and the evidence. Publicly declaring an intention to apply a preconceived bias compromises judicial impartiality. A proportionate removal for that misconduct may be justified under article 10 of the Convention to maintain the authority and impartiality of the judiciary.

The appellant, a magistrate, was reprimanded after expressing a presumption against adoption by same-sex couples. Following remedial training, he gave a BBC interview in which he repeated that adoption by a man and a woman would be better for a child.

A disciplinary process found that the public statement would cause a reasonable person to consider that he would be biased in performing judicial duties. The Lord Chancellor and Lord Chief Justice removed him from office. His Employment Tribunal claims were dismissed. The Employment Appeal Tribunal dismissed his appeal on the victimisation claim.

Before the Court of Appeal, the issue was whether the later disciplinary proceedings and removal were because he had made an allegation of discrimination, and whether the result was incompatible with article 10.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the respondents removed the appellant because he had publicly declared that he would approach same-sex adoption cases on the basis of a preconceived belief rather than the law and the evidence. They did not act because he had implicitly complained that the earlier disciplinary process was discriminatory.
2. Under section 27 of the Equality Act 2010, the question is why the alleged victimiser acted. The protected act need not be the sole or principal reason, but must be a significant part of the operative reason. The Tribunal’s unchallenged findings established that neither the respondents nor either disciplinary panel was motivated by the protected act.
3. The principle in Martin v Devonshires Solicitors, [2010] UKEAT 0086/10, did not assist the appellant. A detriment imposed in response to a discrimination complaint is not victimisation where the true reason is a genuinely separable feature of it. That distinction must be confined to clear cases, but it is not subject to an additional requirement that the circumstances be exceptional. In any event, the removal decision was not a Martin case: the stated misconduct was the appellant’s public assertion of bias, not the complaint.
4. The court upheld the Tribunal’s conclusion that, assuming article 10 was engaged, removal was a proportionate and necessary restriction. A judge may speak publicly on matters of public interest, but must exercise restraint where the authority and impartiality of the judiciary are at stake. The appellant spoke directly about how he would exercise his adjudicatory function and had already been reprimanded and retrained for allowing his preconceptions to influence that function.
5. Lord Justice Peter Jackson and Lady Justice Simler agreed. The appellant was ordered to pay the respondents’ appeal costs, summarily assessed at £13,660.80 plus VAT. Permission to appeal to the Supreme Court was refused.

• Court of Appeal (Civil Division): dismissed the appeal from the Employment Appeal Tribunal.
• Employment Appeal Tribunal: dismissed the appellant’s appeal on the permitted victimisation issue in a judgment handed down on 19 June 2019.
• Employment Tribunal: dismissed the claims of discrimination, harassment and victimisation in a judgment sent to the parties on 10 March 2018.