Good morning and welcome back to your weekly case law update. Last week was our monthly employment law update that had features on sexual harassment, Tribunal delays, PILON and vegan whistleblowing. Prior to that, our previous case law update concerned limitation dates and tribunal procedure, a thrilling affair for those looking to fill some time on a Friday!
This week our case concerns religious discrimination. Those unfamiliar with religion/belief discrimination should read our coverage of the Garredu case as it has useful definitions of a religion, a belief and the categories of discrimination. The question this week is:
Is it discriminatory to dismiss someone for how they express their religious beliefs?
Mr Page, the Claimant, was a practising Christian and worked as a Non-Executive Director for the NHS Development Authority, the Respondent. The Respondent’s work included encouraging the LGBTQ community to engage in NHS services for mental health.
The Claimant was also a lay magistrate for the adoption board. During a same-sex couple adoption case, the Claimant expressed views to his fellow magistrates that he did not agree with same-sex couples adopting. This was despite the report into their suitability as parents being exemplary and the adoption going unopposed.
The Claimant’s fellow magistrates reported the incident and he faced disciplinary sanctions in relation to his role as a magistrate. The Claimant took part in media interviews and expressed his belief that adopted children should be brought up by a mother and father and that it is not normal or in the child’s best interests to be adopted by a same-sex couple or single-parent. Some of the media reports referred to the Claimant as a senior NHS manager.
The disciplinary action in relation to the magistrate’s role was reported by the Daily Mail and MailOnline. The Respondent was not informed by the Claimant of his disciplinary with the magistrates or the media contact afterwards.
When the Respondent was made aware, they arranged a meeting with the Claimant. The day before the meeting the Claimant had a telephone interview with a local radio news reporter to discuss his views on air further.
At the meeting, the Respondent told the Claimant that anyone who read/listened to his media appearances might connect his name to his role with the Respondent. This in turn could disengage the LGBTQ community from the Respondent’s services. The Claimant was warned to alert the Respondent if he were to partake in further media appearances.
The Respondent then received complaints about the Claimant in relation to his media appearances. The Claimant subsequently appeared on BBC Breakfast to discuss his views. He did not inform the Respondent about this.
Following this the Claimant was removed as a magistrate. The Respondent became aware of this and the BBC Breakfast appearance and arranged a meeting to discuss the matter. Before the meeting the Claimant made further comments to the media over a period of three days, including an appearance on Good Morning Britain. Once again, he did not inform the Respondent.
The Respondent became aware of the appearances and suspended the Claimant at the meeting. The Claimant was also told his fixed-term contract would not be renewed. The Claimant initiated an employment tribunal claim for religion/belief discrimination.
The ET rejected the claim. It held the Claimant was not dismissed because of his views, but how he expressed them. By appearing in the media without the Respondent’s knowledge, the Claimant had risked the Respondent’s relationship with the LGBTQ service users. The Claimant appealed and the EAT rejected the appeal. It held that this was a finding of fact that could not be appealed as perverse.
The takeaway point:
No, it is not discriminatory to not renew an NED contract for expressing views that oppose same-sex marriage. By expressing his beliefs in a way that offends the LGBTQ community and jeopardises the employer’s relationship with them, the employee could not argue it was his beliefs that got him dismissed.
Had the employee kept his opinions more privately, or, appeared in the media with the employer’s consent, he would not have been dismissed. Moreover, a key part of the definition of a philosophical belief is it must be acceptable in a democratic society and not conflict with the fundamental rights of others. Here the belief clearly conflicts with the rights of the LGBTQ community and as such is not suitable for protection as a separate philosophical belief to Christianity.
A further point for employers to note is that workers and directors are covered by the Equality Act 2010 and can bring discrimination claims. The act does not exclusively apply to employees, hence why a NED was able to bring a claim.