In the recent case of Page v. NHS Trust Development Authority an Employment Tribunal dismissed Mr Page's claims of discrimination on the grounds of religion or belief.
Mr Page was a non-executive director of an NHS Trust, but was removed from office after publicising his opposition to same-sex adoption in the national media. Mr Page claimed direct and indirect religious discrimination, harassment related to religion or belief, and victimisation. The Tribunal therefore had to consider the extent to which an employer can censor the expression of religious beliefs outside the workplace.
Mr Page was a non-executive director of the Kent and Medway NHS and Social Care Partnership NHS Trust (the Trust) from 2012 to 2016.
The Trust's policies included a requirement to promote equality for LGBT people. It saw it as vital that its staff and Board should not do or say anything that could be perceived as giving rise to a risk of losing the confidence of trust of any section of the community it serves, including those, such as LGBT individuals, where there has been historic distrust and difficulty with engagement. Mr Page accepted it was vital that LGBT members of the community should feel welcome in the Trust and should be encouraged to access its services if they needed them.
Mr Page is a devout Christian and is opposed to same-sex adoption. He had shared these views during a number of appearances on television news programmes, even though he had been advised by the Trust's chairman of the potential negative impact such publicly expressed views could have on the Trust's stakeholders and their confidence in the Trust's commitment to equality for LGBT people. Mr Page was asked to inform the Trust of any future media appearances in advance. However, he continued to engage the media without notifying the Trust.
This included appearing on ITV's Good Morning Britain where he voiced his opposition to same-sex marriage and adoption. He went on to state that he considered homosexual activity to be wrong. As a result of this he was removed from his role as a non-executive director. This decision was taken by the NHS Trust Development Authority, which is the body responsible for appointing non-executive directors.
Mr Page therefore raised Tribunal proceedings against the Development Authority, claiming direct and indirect discrimination on the grounds of religion or belief, harassment related to religion or belief, and victimisation.
Mr Page also sat as a lay magistrate until 2016. He was issued with a reprimand in 2014 for allowing his religious beliefs to influence his decision in an adoption case involving a same-sex couple. The refusal of adoption services to same-sex couples due to their sexual orientation has been unlawful discrimination since 2008. Mr Page was later removed from the magistracy for serious misconduct.
The Tribunal held that Mr Page's removal from office was not because of his religion or belief, or because he held or expressed his religious views. The reason for dismissal was that he accepted invitations to appear in the media without informing the Trust as requested. Therefore, there was no direct discrimination.
The Tribunal took into account Mr Page's high profile within the Trust, together with his unwillingness to distinguish between his personal views and what was appropriate given the seniority of his role.
The Tribunal found that there was also no indirect discrimination. This was due to the difficulty of finding an appropriate provision, criterion or practice, or a group disadvantage.
Mr Page's human rights claim was also dismissed.
This case will be reassurance for employers that they can act where directors and employees make statements of this nature outside work. This includes dismissal where the statements warrant it. The fact that the statements are an expression of religious or philosophical belief may not be enough to protect a director or employee from action being taken.
Recent case law demonstrates that the more extreme a view, the more a Tribunal may concentrate on the way in which it was manifested or expressed.
If employees and directors wish to express their private and personal views, they must do so carefully and make it very clear that they are speaking in a private capacity. Even when they do so, they must be aware that it can impact on their employment and or their Board role. Where there are clear policies which require advance authority to make public comments, employees and Board members should take care to follow them. However, employers should ensure their policies are up to date. They must also recognise that it may not always be appropriate to dismiss. This is going to depend on what role the person has and what sector the employer operates in. Ultimately it will be a question of who said what and to whom.