Further to my last post, I impart herein, my report and analysis of the judgment in the case of Richard Page vs NHS Trust Development Authority, see here for the full judgment.
The Claimant’s causes of action were direct discrimination, indirect discrimination, harassment and victimisation, all contrary to the Equality Act 2010. The Claimant was not an employee and so there was no claim for unfair dismissal.
The findings of fact are contained at paragraph 11 and 43 sub-paragraphs of the same. One that was particularly significant was the finding at 11.6, which was accepted by both parties, that:
“LGBT members of the community suffer disproportionately from mental health problems. Both parties also accept that there have been significant difficulties with a lack of willingness on the part of LGBT members of the community to engage with mental health services such as those provided by the Trust”
Furthermore, at paragraph 11.7 the Claimant accepted that:
“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 need them”
In formulating the case for discrimination contrary to the Equality Act 2010, the Claimant’s representative argued that the Claimant should be compared to a non-Christian who believed that same sex couples were at least as suitable to be parents as heterosexual couples. The Respondent argued by contrast, that the Tribunal should not adopt the usual comparator approach as opposed to simply asking the reason why the Claimant was dismissed.
The Respondent further argued that, If the Tribunal did adopt the comparator approach, then the Claimant should be compared to somebody with opposing views to his own, who had been warned not to express such views publicly without informing their employer.
The Claimant had argued that articles 9 & 10 of the European Convention on Human Rights were engaged. The Tribunal rejected this argument. With respect to article 9, the Tribunal stated that even if it was engaged any infringement was permissible because:
“the Claimant’s actions were clearly in conflict with the protection of health”.
Is there any distinction between being ‘in conflict with the protection of health’ and a danger to health? If not, then then one should pause and reflect on what the Tribunal have said.
With respect to the Claimant’s direct discrimination claim, the Tribunal found that the Claimant’s specific belief, that it was in the best interests of a child to be raised by a mother and father, was a protected belief for the purposes of section 10 of the Equality Act 2010, in addition to his Christianity.
However, the Tribunal determined that the Claimant was not dismissed because of his opinions on same sex adoptions or his religion but because he made media appearances without ‘informing’ the Respondent. This meant that there was no direct discrimination for the purposes of the Equality Act 2010.
I wonder just how candid the Tribunal were, when they attached so much importance to the Respondent being ‘informed’ about the media appearances. From reading the judgment in its entirety, I think it is clear the Tribunal believed that the Respondent had the right to stop Richard Page from expressing his opinions but did not say so explicitly. The Respondent had asked for an assurance from Mr Page that he would not express his views publicly but he refused to provide this (paragraph 11.20). Additionally, from reading the Respondent’s submissions (paragraphs 23-34), they do not appear to rely only on the fact that Richard Page did not inform them of his media appearances but on the instructions given to him not to express his opinions (see paragraph 30).
It is unsurprising that the Tribunal adopted a narrow view of direct discrimination as direct discrimination cannot be justified under the Equality Act 2010. Nonetheless, when adopting such a narrow view it will be rare that a Claimant will be able to establish direct discrimination; the vast majority of cases will involve employees being told that they cannot express certain beliefs. If other employees are allowed to express opposing beliefs on the same subject and in the same context, then most would view this as direct discrimination.
The Claimant’s claim for indirect discrimination failed because, although he convinced the Tribunal that there was a ‘provision, criterion or practice’ (“PCP”) in place that affected him (the PCP being the objective of winning and maintaining the confidence of ‘LGBT members of the community’), he failed to establish a group disadvantage; i.e. he failed to establish that Christians or others who shared his belief on same sex couples adopting children, were disadvantaged by the PCP.
The reasoning on indirect discrimination was inadequate in my view. At paragraph 79 the Tribunal stated that the evidence provided by the Claimant fell far short of establishing a group disadvantage. They do not state what evidence would have been required and were being somewhat unrealistic and obtuse, given the type of PCP and protected characteristic in question. In any event, isn’t the disadvantage self-evident? Somebody with Claimant’s views on same sex adoptions is not allowed to express such views publicly while employed by the Respondent, whereas somebody with the opposite views who is employed by the Respondent, is entitled to express their views publicly? Is there not an inherent value in being entitled to express one’s opinions?
Unlike direct discrimination, indirect discrimination can be justified under section 19(2)(d) of the Equality Act 2010. I am surprised that the Tribunal did not go on to consider whether the PCP was justified for the purposes of section 19(2)(d) of the Equality Act 2010, even on an obiter dictum basis. I infer that the Tribunal would have found that the PCP was justified on the ground that it was necessary for the protection of health.
The claims for harassment and victimisation were dismissed and I refer to the judgment for the reasons why. I would have been interested to have seen the result if the Claimant had been an employee suing for unfair dismissal, in addition to the Equality Act claims. I am of the firm impression that such a claim would also have failed, if heard by the same Tribunal. If so, this has dreadful implications for freedom of speech, giving employers wide ranging powers to censure their employees on the basis that their opinions may cause offence, especially to persons who belong to a group deemed worthy of protection.
Mr Page has said that he intends to appeal the decision. If so then I will probably be writing about this case again.
 It is perhaps noteworthy, that the Tribunal did not and would not have, considered the veracity of Mr Page’s comments, which could have mental health implications for the hypothetical children involved