Valerie Bond
Posted on 9 Mar 2021

Conflicting Characteristics – an update

In the case of Page v Lord Chancellor [2021] EWCA Civ 254, the Court of Appeal considered whether it was religious discrimination to remove a magistrate who declined to order a same-sex adoption due to his Christian beliefs. This is a further case following from our article on Conflicting Protected Characteristics which considered the dismissal of a Christian teacher who had posted an anti-LGBT status on Facebook.

The Facts

A lay magistrate brought a claim for victimisation following his removal from office. The magistrate sat in the family court, hearing cases involving adoption decisions. He was a practising Christian and firmly believed that it was not normal for same-sex couples to adopt a child. In a case involving two male partners hoping to adopt, the magistrate expressed his views and refused to sign the approval order. Following this, the magistrate was reprimanded for breaching his duty to decide adoption cases impartially.

The magistrate then went on to ignore specific advice on advancing his views and aired his situation on a television broadcast. As a result, he was removed from office for bringing the magistracy into disrepute.

The magistrate claimed that he had been discriminated against on the basis of his religious beliefs.

The Employment Tribunal Decision

The Employment Tribunal (ET) considered the statement made by the magistrate during the television broadcast and whether it amounted to a protected act. The magistrate had indicated that he struggled with the fact that his Christian beliefs were seen as prejudice. The ET subsequently held that this part of the broadcast amounted to a protected act. However, the ET further held that the magistrate had not been removed from office as a result of the protected act, but due to his failure to follow advice given in relation to contacting the media.

The magistrate appealed to the Employment Appeal Tribunal (EAT) on the grounds that the ET had been wrong to hold that only part of his broadcast had been a protected act. He also argued that his removal from office had breached his right to freedom of expression.

The EAT found that the ET had been correct to focus on separate parts of the broadcast to determine whether or not a protected act had occurred. The EAT also held that the ET was entitled to consider the potential consequence of the magistrate's actions in bringing the judiciary into disrepute and that this was separate from the allegations that he had been discriminated against.

Finally, the EAT considered the fact that the magistrate had suggested in his statement that he would regard an adoption by same-sex parents less favourably, irrespective of the evidence before the court. This was a potentially serious infringement of the judicial oath.

Held

The Court of Appeal dismissed the magistrate's appeal. It held that the EAT had been correct in finding that the decision to remove the magistrate had not been discriminatory. The magistrate had not been removed as a result of his religious beliefs or his complaint of discrimination via the television broadcast. The decision to remove the magistrate from office had been taken due to his clear public statement that he would not be prepared to carry out his judicial duties in a non-biased manner.

Note for Employers

Employers should take into consideration the religion and beliefs of their employees and ensure that they are not inadvertently discriminating against them, such as by requiring them to wear a certain uniform. However, there may be instances, as in the present case, where the issue is more one of bias.

Employers should ensure they have stringent policies in place so that employees are fully aware of what is expected of them during the course of work, as well as outside work such as on social media.