An Employment Tribunal has recently dealt with another claim, which has been widely reported in the media, relating to the often problematical issue of a “clash of rights” between protected characteristics and the remedies available to an employee under the Equality Act 2010.
Background
Richard Page held office as a NHS Non-Executive Director for the Kent and Medway NHS and Social Care Partnership NHS Trust (the Trust) between 2012 and 2016. Mr Page, a devout Christian, made several media appearances, including on ITV’s Good Morning Britain, expressing his view that adoption by same-sex couples was “not normal”. These media appearances and interviews continued without him informing the Trust in advance, even though the Trust had directly requested him to do so. The Chairman of the Trust specifically advised Mr Page that voicing his opinion on such matters through the media platform had the possibility of damaging the confidence that the stakeholders of the Trust had in it and could cause a negative impact. In response, Mr Page guaranteed that he would follow the policies of the Trust more closely, in particular acknowledging that these included the requirement for him to promote equality for LGBT people.
Despite this assurance, Mr Page continued to express his opinion through the media without notifying the Trust and publicised more of his views, including his belief that same-sex marriage and homosexuality was wrong. This led to disciplinary action, with Mr Page eventually being referred to the NHS Trust Development Authority, the body with responsibility for the appointment of Non-Executive Directors. The decision was made that it was no longer in the interests of the health service for Mr Page to remain in his role and so he was removed.
Subsequently, Mr Page raised claims with the Employment Tribunal for direct and indirect religious discrimination, harassment related to religion and victimisation.
While Mr Page’s role meant he was not an employee of the Trust, he was accepted as having worker status and as such, he was (in theory) able to rely on the protections provided by the Equality Act.
The issue at the heart of his claims was whether his right to express a view based on his religious belief trumped the obligations the Trust had to ensure that any view expressed by Mr Page did not go so far as to amount to discrimination on grounds of sexual orientation.
Decision
The claims were dismissed for the following reasons:
- There was no direct discrimination since the claimant was not removed as a result of his religion or because he expressed his views. The action taken by the Trust Development Authority was because Mr Page appeared in the press and on television with no consideration of the impact that this could have on the staff and patients of the Trust, and continually did so without informing the Trust despite express instructions not to do so. His conduct was such that he was unable or unwilling to differentiate between his views and what it was appropriate for someone within his role to say publicly.
- The claim of victimisation was dismissed for the same reasons.
- The tribunal found that there was no indirect discrimination because no provision, criteria or practice and no group disadvantage had been shown by the Claimant.
It is understood that the Claimant intends to appeal the decision with the support of the Christian Legal Centre.
Analysis
This case raises the matter of the degree of control that an employer has in relation to censoring the expression of religious, philosophical or other beliefs outside of the work place. It highlights the scope of conflict between the protected characteristics of religion or belief and sexual orientation, particularly as some religions take a particularly intolerant stance on homosexuality.
It was accepted by the tribunal that the belief Mr Page founded upon as the basis of his claim (that it is “in the best interests of a child to be brought up by a mother and father”) was a belief that satisfied the wide interpretation of a religious or philosophical belief in terms of the Equality Act 2010. For such a belief to fall within the scope of the Act, the following principles need to be considered as confirmed in the case of Grainger plc and others v Nicholson:
- The belief must be genuinely held;
- It must be a belief, not an opinion or viewpoint based on the present state of information;
- It must be a belief as to a weighty and substantial aspect of human life and behaviour;
- It must attain a certain level of cogency, seriousness, cohesion and importance;
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
As such, the tribunal found that the relevant protections provided by the Act would apply to Mr Page.
The tribunal did comment that had the belief relied upon by the claimant been that homosexuality is wrong, then this might not have satisfied the definition and the tribunal may have concluded that “this was not a belief that was worthy of respect in a democratic society and/or one that was compatible with the fundamental rights of others”.
Employers therefore need to be aware of the extent to which they and their workers must tolerate the religious freedom of expression of others. Consequences of such expressions could in fact infringe on some of the other protected characteristics of different employees. Due to the sensitive nature of these issues, employers should be careful and vigilant when monitoring the expressions made by their employees.
Additionally, it is important that employers have policies in place which prohibit behaviour which could amount to unlawful harassment or discrimination in the workplace, even though the behaviour merely consists of the expression of a strongly held religious belief. Employers should ensure that any policies dealing with these matters are proportionate and are applied equally to all religious groups.
Nothing in this article should be taken as legal advice. If you would like further advice on this matter, or any other Employment Law matter, our solicitors would be more than happy to help.
