Page v Lord Chancellor

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal and the Employment Tribunal on his claim of victimisation under the Equality Act 2010. The key legal principles applied were (i) the definition of victimisation in section 27 of the Equality Act 2010 and the requirement to inquire into the respondent's 'reason why' (the relevant mental processes); (ii) the principle that where an employer's action is in response to a protected act, the action will not amount to victimisation if the true reason was a separable feature of the act (the principle from Martin v Devonshires); and (iii) the Convention rights under article 10 ECHR as applied through section 3 of the Human Rights Act 1998 where interference must be justified as necessary and proportionate to maintain the authority and impartiality of the judiciary. The court upheld the tribunals' findings that the appellant's broadcast statements made clear he would apply preconceived beliefs rather than law and evidence in adoption cases, and that the respondent decision-makers acted because of that demonstrated inability to perform judicial duties impartially rather than because the appellant had made a protected complaint. The interference with article 10 rights, insofar as engaged, was held to be justified and proportionate.

Background and parties:

• The appellant, a magistrate, expressed in court and subsequently on national television that he believed adoption was better by a man and a woman and declined to sign an adoption order involving a same-sex couple. Following disciplinary processes he received a reprimand and later, after a BBC interview in which he repeated his views, was removed from the magistracy by the Lord Chancellor and the Lord Chief Justice.
• The appellant brought claims in the Employment Tribunal alleging unlawful discrimination, harassment and victimisation under the Equality Act 2010; the ET dismissed the complaints. The Employment Appeal Tribunal permitted an appeal only on the victimisation claim and dismissed it. The appellant appealed to the Court of Appeal on points limited largely to victimisation and article 10 ECHR issues.

Nature of the claim/application: The appellant relied chiefly on a victimisation claim under section 27 of the Equality Act 2010, asserting that the BBC interview (understood as including the reporter's framing) amounted to a protected act (an allegation of discrimination) and that subsequent disciplinary proceedings and removal constituted victimisation. He also invoked Convention rights (article 10) and asked the tribunals to interpret domestic law compatibly under section 3 HRA.

Issues framed by the court:

• Whether the interview (or its factual context) amounted to a protected act under section 27(2) of the Equality Act 2010;
• Whether the respondent decision-makers subjected the appellant to a detriment "because" he had done a protected act (the relevant causation/"reason why" inquiry), including the application of the principle in Martin v Devonshires about separable features of protected acts;
• Whether removal engaged article 10 ECHR and, if so, whether the interference was justified as necessary and proportionate to maintain the authority and impartiality of the judiciary.

Court's reasoning and disposition:

• The ET accepted that, read as a whole (including the reporter's framing), the broadcast could be treated as indicating the appellant alleged he had been disciplined because of his Christian beliefs and therefore could amount to a protected act; however the ET found the respondent decision-makers removed him for the distinct reason that he had publicly declared he would apply preconceived beliefs rather than law and evidence when deciding adoption cases. That reason was a legitimate, non-discriminatory basis for removal: it concerned suitability and impartiality in judicial office.
• The Court of Appeal agreed that the tribunals correctly applied the Martin principle, distinguishing the protected act from separable features of the conduct complained of, and that the panels' and respondents' contemporaneous reasons focused on judicial impartiality and misconduct rather than retaliation for a complaint. The court accepted that the ET was entitled to find Dr Taylor's reasons were not primarily motivated by the appellant's making of a protected complaint.
• On Convention grounds, the ET proceeded (without deciding engagement definitively) on the basis that article 10 was engaged and held any interference to be justified under article 10(2) for the purpose of maintaining judicial authority and impartiality; the Court of Appeal endorsed that conclusion, finding the sanction proportionate in the circumstances.

The appeal is dismissed. The Court held that the appellant was removed from the magistracy because he publicly declared that he would decide adoption cases on the basis of his preconceived beliefs rather than on the law and the evidence, which legitimately justified removal for misconduct and to protect judicial authority and impartiality, and not because he had made a protected complaint; any interference with article 10 was justified and proportionate.

Proceedings began in the Employment Tribunal (hearing Feb 2018; judgment and reasons sent 10 March 2018) where the appellant's discrimination, harassment and victimisation claims were dismissed. The Employment Appeal Tribunal permitted appeal only as to victimisation and dismissed the appeal (judgment 19 June 2019). The Court of Appeal ([2021] EWCA Civ 254) dismissed the appellant's appeal on 26 February 2021.