Non-executive Director Removed From NHS Trust For Expressing Views On Adoption Was Not Discriminated Against

• Published date: 23 March 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Wrigleys Solicitors
• Author: Mr Michael Crowther

Court of Appeal decision highlights careful balance between freedoms and limitations of expression.

In 2019 we highlighted a decision of the EAT that a former magistrate, Mr Page, had not been discriminated against for his views about same-sex marriage and adoption issues in relation to his loss of his role as an NHS Trust director.

Mr Page subsequently appealed the decision and this matter has now been heard alongside his parallel appeal against the EAT decision in respect of him losing his position as a magistrate.

Case: Page v NHS Trust Development Authority

An outline of the facts in the case is available from our 2019 article 'Was a Christian NHS Trust Director discriminated against for expressing his views on same-sex couple adoption?'. Mr Page appealed the EAT's decision on broad grounds, contending that the EAT had been wrong to uphold the original tribunal's decision that the actions of the Trust had not been directly or indirectly discriminatory or amounted to harassment or victimisation. In addition, he appealed against the findings that his rights under the European Convention on Human Rights (ECHR) were not infringed.

The Court of Appeal concluded that the EAT and original tribunal had been right to find that there was a non-discriminatory reason for the Trust to suspend and then not reinstate Mr Page as a non-executive director. The issue was not Mr Page's particular beliefs but the way in which he engaged with the media, particularly because Mr Page had failed to notify the Trust of the loss of his role as a magistrate and the subsequent media exposure which followed. This was compounded by the fact that Mr Page failed to discuss proposed media appearances with the Trust after the Trust had asked him to do so. The decision was also based on the Trust's concern that Mr Page's views could impact on the Trust's ability to engage with the local LGBTQ community, in contravention of its equality duty.

On the issue of whether the actions against Mr Page had infringed his Article 9 (freedom of thought, conscience and religion) and 10 (freedom of expression and information) rights under the ECHR, the court highlighted the important difference between the freedom to hold these beliefs and the freedom to manifest them. The Articles themselves are clear that the extent to which beliefs could be manifested was limited.

In this case, the court determined that the issue of whether...