Page v NHS Trust Development Authority

Disciplinary action because of a protected belief’s justifiably objectionable manifestation is distinct from action because the person holds or manifests the belief as such. The distinction applies only where the consequences of the particular manifestation genuinely justify the action.

Limits on a public office-holder’s expression of religious beliefs require a fact-sensitive proportionality assessment. The court must strike a fair balance between individual rights and the institution’s legitimate interests. A senior, high-profile office-holder may be expected to accept restrictions where public statements create a genuine risk to the institution’s core services and the office-holder shows no willingness to address that risk.

A non-executive director of an NHS mental health trust publicly expressed Christian views about same-sex adoption, same-sex marriage and homosexual activity. The NHS Trust Development Authority suspended and investigated him. Its panel found that his media activity, failure to notify the Trust and lack of insight risked undermining the confidence of LGBT patients, staff and the public.

The Employment Tribunal dismissed claims of direct and indirect religion or belief discrimination and victimisation under the Equality Act 2010. The Employment Appeal Tribunal dismissed the appeal.

The Court of Appeal considered whether the disciplinary action infringed articles 9 or 10 of the Convention; whether objection to the manner of manifesting a protected belief could be distinguished from objection to the belief itself; and whether the indirect discrimination and victimisation claims had been properly dismissed.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the Authority’s action was compatible with articles 9 and 10 of the Convention and did not contravene the Equality Act 2010. Underhill LJ delivered the judgment, with which Peter Jackson LJ and Simler LJ agreed.
2. For article 9, conduct is a manifestation of religion or belief only where there is a sufficiently close and direct nexus between the conduct and the underlying belief. The Tribunal was entitled to find that the media statements were not a direct expression of Christianity. It was arguable that they directly manifested the narrower philosophical belief about children being brought up by a mother and father, but that point was not determinative because any interference was justified.
3. Proportionality required a balance between the director’s right to express important and sincerely held beliefs and the Authority’s legitimate interest in protecting its healthcare work. The Tribunal could give substantial weight to the accepted risk that statements by a high-profile board member would deter gay people with mental health difficulties from using the Trust’s services. The statements extended beyond adoption, and the director had repeatedly failed to notify the Trust or acknowledge the resulting sensitivities. The conclusion was fact-specific and did not establish a general bar on Christians holding public office or expressing traditional beliefs.
4. For direct discrimination under section 13 of the Equality Act 2010, a valid distinction may be drawn between action because a person holds or manifests a protected belief and action because the belief was manifested in a particular, justifiably objectionable way. Here the Authority acted because the director publicly expressed his views in circumstances risking harm to the Trust’s services, compounded by his conduct and lack of insight. It did not act because he was Christian or held the protected belief. A hypothetical comparator was unnecessary once the reason for the treatment had been found.
5. The indirect discrimination appeal failed because the Tribunal’s unchallenged justification finding applied equally to any relevant provision, criterion or practice. Section 19 continued to require proof of group disadvantage. The court expressed no concluded view on the precise evidence needed to establish that disadvantage in a religion or belief case.
6. The victimisation claim failed because the Authority was not influenced by the director’s allegations that judicial authorities had discriminated against him. His protected allegations and his statements about homosexuality remained conceptually separate, although made in the same interviews.

1. Court of Appeal (Civil Division): unanimously dismissed the appeal and upheld the dismissal of the discrimination and victimisation claims: [2021] EWCA Civ 255.
2. Employment Appeal Tribunal: Choudhury P, Ms K Bilgan and Mr M Worthington dismissed the appeal on 19 June 2019.
3. Employment Tribunal: Employment Judge Bryant, Ms H Bharadia and Mr J Gautrey dismissed the claims in their entirety by a judgment and reasons sent on 18 October 2017.