A case at the Employment Appeal Tribunal saw claims from a lay Magistrate for victimisation over his views on same-sex adoptions resulted in their removal from office.

The facts

In a recent case Richard Page, a lay magistrate and practicing Christian was removed from office after he expressed negative  views about same-sex adoptions. Following an investigation, Mr Page was told that he would be required to sit on all cases that came before him (including cases involving applications for same-sex adoptions). Mr Page subsequently made comments in the national media relating to his treatment and his religious views. In light of these actions, Mr Page’s actions were investigated by the conduct panel for magistrates. The panel concluded that Mr Page had brought the magistracy into disrepute and also that he had broken his judicial oath. The panel went on to recommend that Mr Page be removed from office.

Following his removal from office, Mr Page took his case to the employment tribunal; arguing that he had been subjected to indirect and direct discrimination because of religion or belief, harassment and victimisation. He also argued that his rights to freedom of expression and freedom of thought, conscience and religion under the European Convention on Human Rights had been infringed.

Mr Page’s employment tribunal claims

The employment tribunal dismissed his claims. In relation to direct discrimination, the tribunal accepted that Mr Page had been dismissed but found that this was because he had publicly displayed a preconceived bias towards same-sex adopters in relation to his judicial role (i.e. he had not been dismissed for his religious beliefs). The tribunal went on to confirm its view that Mr Page’s removal from office did not involve an unjustified interference with his human rights.

Turning to the claim for victimisation, the tribunal found that part of an interview that he had given to the BBC, in particular Mr Page’s belief that he had been disciplined because of his religious views constituted a protected act. However, the tribunal concluded that the reason for Mr Page’s removal from office was not the protected act itself but because he had openly and publically declared a bias applicable to the exercise of his judicial functions via the BBC.

On the issue of his human rights, the tribunal found that Mr Page’s removal from office was a proportionate limitation on his freedom of expression and the right to manifest his religion and that the interference with those rights was justified.

Appeal to the Employment Appeal Tribunal (EAT)

Following the outcome of the employment tribunal, Mr Page issued an appeal in the EAT challenging the victimisation aspect of the decision. He also argued that the tribunal had failed properly to apply Article 10.

Mr Page contended in relation to his victimisation allegation that the tribunal had failed to correctly identify clearly what the protected act was. Mr Page argued that the full interview that he had provided to the BBC should be seen as a protected act, not just the isolated comment he had made about feeling discriminated against as a Christian.

Disagreeing with this analysis, the EAT found no error in the tribunal finding that only part of the BBC interview constituted a protected act. The tribunal had been entitled to consider the interview in its entirety and then to focus on different aspects of the broadcast. Explaining its reasoning, the EAT confirmed that the employment tribunal was entitled to find that there had not been a protected act when Mr Page stated to the BBC that “My responsibility as a Magistrate as I saw it was to do what I considered best for the child, and my feeling was therefore that it would be better if it was a man and a woman who were adoptive parents”. His indication however that he believed he had been disciplined for his views as a Christian had been.

The EAT reiterated that in cases involving allegations of victimisation the tribunal should focus on the reason why the employer acted as it did, namely what was its core reason for treating the employee in the way that it did.

The EAT concluded that in the present case, that Mr Page’s removal from office was caused by his decision (which notably was against judicial guidance) to contact the media and also because his statements potentially compromised the perceived independence and reputation of the judiciary.

Finally and in relation the allegations concerning Mr Page’s human rights, the EAT had no difficultly in dismissing this part of the appeal, confirming that the tribunal had been entitled to conclude that removing Mr Page from his office as a magistrate was a proportionate limitation on his right to freedom of expression on the basis that maintaining the authority or impartiality of the judiciary is vital in the context of the effective operation and functioning of democratic societies.

Commentary

Readers will perhaps not be overly surprised to learn that Mr Page’s claims were unsuccessful. This case reminds us that freedom of expression is not an unfettered right and/or an absolute right. The case also highlights the risks that exist where an employee or office-holder (particularly in the public sector) acts in breach of or expresses views which are inconsistent with workplace rules and policies.

It is essential that employers ensure that their employees are properly trained in order to ensure that they are aware of the issues that can arise in the context of discrimination law. We run a series of interactive workshops covering diversity, inclusion and equality at our offices in Leeds, York and Sheffield and are also able to deliver training internally. Please contact ius if you would be interested in finding out more about the courses that we run or would like assistance with Employment Law / HR issues generally.

To discuss any of the issues raised in this article or for specific employment law advice, including details of our training, please contact Nathan Combes on T.01904 561 449 or any of our experienced employment law team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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