Adopting and Employee’s Belief:
Why the decision to remove a Director for expressing his faith-based objection to same-sex adoption was not discriminatory and may have wider consequences.
Last month the Employment Appeal Tribunal (“EAT”) with its decision in Page v NHS Trust Development Authority found that it was not discriminatory to decline to renew Mr Page’s Non-Executive Directorship of the Trust when the opportunity to review arose. P had been a lay magistrate for approaching 20 years and as a result would make decisions on adoptions. P, a practising Christian, holds the firm belief that it is in the best interests of every child to be brought up by both a mother and father. He was reprimanded for expressing his view which was reported in the media. When the Authority discovered this it informed him that public expression of his views could undermine confidence in his judgement and instructed him to let them know if there were further media interest. P continued though engaging with the media.
The Authority’s purported reasons for not extending P’s fixed term contract were:
- P’s public response to the decision to remove him as a magistrate;
- His continuation with the media, and;
- Its alleged concern that his public position could have a negative impact on the confidence of staff, patients and the public in him as a local NHS leader.
P claimed both direct and indirect discrimination against the Authority arguing that he had been removed because of his religious beliefs.
After losing at first instance Employment Tribunal, P appealed to the EAT who held that the appropriate comparator for direct discrimination would have been someone who, for reasons unrelated to religious belief, spoke to the media against the Trust’s instructions, and whose remarks may have had a negative effect on the Trust’s image. The EAT found that such a comparator would have been treated in the same way and therefore religion could not be the basis for the treatment.
In respect of indirect discrimination, the EAT rejected P’s argument that, under Article 9 of the European Convention on Human Rights (The Freedom of thought, conscience and religion) there is no need to demonstrate group disadvantage i.e. that Christians as a whole are put to detriment.
This decision could have a wide impact in that there is nothing to say that it is limited to religious discrimination. The principle could equally extend to not only other protected characteristics such as gender, sexual orientation or disability but also the treatment of people who see themselves as “whistle-blowers”. The point is that there is in law a difference between treatment on the grounds of a protected characteristic or whistle-blowing and treatment on account of the manner something was done, in this case, including interviews with the media. That said, there is always going to a fine line and this is a highly fact sensitive area and so full professional legal advice should always be sought when dealing with thorny issues like this.
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