Page v NHS Trust Development Authority

The Court of Appeal dismissed Mr Page's appeal against the Employment Appeal Tribunal and the Employment Tribunal which had rejected his claims under the Equality Act 2010 and considered his Convention rights. The primary legal principles applied were: (a) the distinction between the absolute right to hold a religion or belief and the qualified right to manifest it under Article 9 ECHR; (b) the requirement under Article 9 and Article 10 to justify any limitation by reference to necessity and proportionality; and (c) under the Equality Act 2010, the distinction between discrimination for holding a protected belief and adverse treatment occasioned by the particular manner of manifesting that belief (direct discrimination), the need to identify a provision, criterion or practice and group disadvantage for indirect discrimination (section 19), and the causation requirement for victimisation (section 27).

The Court upheld the Employment Tribunal's factual findings that the Authority's disciplinary response was prompted by the appellant's public media appearances in which he expressed views about homosexuality and same-sex adoption, and by his failure to inform the Trust despite earlier warnings. The Tribunal's conclusion that Article 9 was either not engaged as to his Christianity (or, even if engaged, that any interference was justified) was held to have been open to it on the evidence. The Tribunal further correctly treated the Authority's reason as being the objectionable manifestation of views in the media rather than the appellant's underlying belief, so the direct discrimination claim failed. The indirect discrimination claim failed for lack of proven group disadvantage (and in any event would have been justified for the same reasons as the Article 9 justification). The victimisation claim failed because the Tribunal found that the protected acts (complaints about treatment by the judicial authorities) did not cause the Authority's actions.

Background and parties:

• Mr Richard Page, a Non-Executive Director of Kent and Medway NHS and Social Care Partnership Trust, was the claimant-appellant. The respondent was the NHS Trust Development Authority (part of NHS Improvement).
• The dispute followed a series of media interviews by Mr Page, in which he expressed views rooted in his Christian faith about same-sex marriage, homosexual activity and same-sex adoption. The Trust informed the Authority, Mr Page was suspended and the Authority's Termination of Appointments Panel (TAP) concluded that it was not in the interests of the health service for him to serve as a Non-Executive Director; by the time of the TAP decision his term had expired but the findings would affect future appointments.

Procedural history:

• Claim to Employment Tribunal (London South) alleging unlawful discrimination, harassment and victimisation under the Equality Act 2010: dismissed by ET (Judgment and Reasons dated 18 October 2017).
• Appeal to Employment Appeal Tribunal: dismissed by EAT (19 June 2019).
• Permission to appeal to the Court of Appeal granted; hearing 3–4 November 2020; judgment handed down 26 February 2021: appeal dismissed.

Nature of claim and relief sought:

• The claim alleged unlawful discrimination and harassment and victimisation by reference to religion or belief under Part 5 of the Equality Act 2010. Specific relief sought is not stated in the judgment.

Issues framed by the Court:

• whether Article 9 (freedom of religion) and Article 10 (freedom of expression) were engaged by Mr Page's media statements;
• if engaged, whether any interference was justified (necessity and proportionality);
• whether the Authority's actions amounted to direct discrimination (did it act "because of" religion or belief) or instead because of the manner in which the belief was manifested;
• whether any provision, criterion or practice (PCP) applied by the Authority put Christians (or those sharing Mr Page's belief about the traditional family) at a particular disadvantage (indirect discrimination) and if so whether it was justified; and
• whether the Authority's actions constituted victimisation by reason of protected acts (causation).

Court's reasoning (concise):

• The ET had been entitled to find that Mr Page's interviews were not a "direct" manifestation of his Christianity in the sense required by Eweida; alternatively, even if Article 9 was engaged the interference was justified because the Authority and Trust reasonably feared a detrimental effect on engagement by LGBT service-users with critical mental health services. The proportionality balancing was fact-specific and the ET's conclusion was open on the evidence.
• Direct discrimination failed because the Authority's reason was the appellant's public expression of views in a high-profile role and his failure to heed prior warnings, not the holding of the belief itself; that distinction between belief and objectionable manifestation is recognised in previous authority.
• Indirect discrimination failed for lack of evidence of group disadvantage and, in any event, the same justification applied.
• Victimisation failed because the Tribunal found the protected acts did not cause the Authority's actions.

Wider context: the Court observed that the decision does not and should not support any broad conclusion that holders of traditional religious views are precluded from public office; the case turns on the specific facts and the balancing of rights and institutional interests.

The appeal is dismissed. The Court held that the Employment Tribunal was entitled on the evidence to find that Article 9 was not engaged in respect of the appellant's Christianity (and that, even if engaged, any interference was justified); that the Authority's reason for action was the appellant's public manifestation of his views in the media and his failure to notify the Trust (not the mere holding of his religious beliefs), so the direct discrimination claim failed; that indirect discrimination was not made out for lack of group disadvantage (and would in any event be justified); and that victimisation was not established because the protected acts did not cause the Authority's actions.

Claim heard and dismissed by Employment Tribunal (London South) – Judgment and Reasons sent 18 October 2017 (no neutral citation stated). Appeal to Employment Appeal Tribunal dismissed by constitution of Choudhury P, Bilgan and Worthington on 19 June 2019 (no neutral citation stated). Appeal to Court of Appeal allowed permission, heard 3–4 November 2020; Court of Appeal judgment dismissing the appeal delivered 26 February 2021 ([2021] EWCA Civ 255).