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Another case highlighting the conflict between certain protected characteristics in terms of a refusal to treat a person or group with equal respect as being evidence of unlawful discrimination

Partner, Paul Johnstone

The Employment Appeal Tribunal (“EAT”) in the case of Page v Lord Chancellor has considered whether a magistrate was subject to religious discrimination after being removed from that office following a decision of the magistrate not to sign a same-sex adoption order due to his strong Christian beliefs.

Background

Mr Page worked as a lay Magistrate in Kent, hearing both criminal and family matters often involving adoption decisions. He heard a same-sex adoption application in 2014 and declined to sign the order due to his strongly held Christian beliefs.

Mr Page expressed his private view that he felt strongly that a child should be raised by a traditional family unit of mother (female) and father (male). He held the belief that it was “not normal” for a child to be adopted by a single parent or a same-sex couple. His fellow magistrates reprimanded Mr Page for his decision. He subsequently addressed the national media in 2015, expressing his religious views on the BBC and appearing in other news articles. By doing so, Mr Page was in contravention of an Advice Note about magistrates’ involvement and contact with the media. Mr Page was then removed from the magistracy by the Lord Chancellor’s department for serious misconduct.

Mr Page brought numerous claims to the Employment Tribunal (“ET”), including direct discrimination on the grounds of religious belief, indirect discrimination, harassment, and victimisation.

The Law

There were many claims brought to the ET, however it was only the Tribunal’s decision in relation to victimisation that was challenged on appeal.

Section 27 of the Equality Act 2010 (“the EA 2010”) governs the law on victimisation. It affords protection to workers who are subject to a detriment because they have done a protected act or it is believed they have done or may do a protected act.

Section 27(2) the EA 2010 defines a protected act as any of the following:

  1. “Bringing proceedings under this Act;
  2. Giving evidence or information in connection with proceedings under this Act;
  3. Doing any other thing for the purposes of or in connection with this Act;
  4. Making an allegation (whether or not express) that A or another person has contravened this Act.”

Mr Page alleged that the statements he made to the media during his BBC interview were protected acts, amounting to the making of an allegation (whether or not express) that a person has contravened the 2010 Act, thereby falling within section 27(2) of the EA 2010.

It is a question of fact for a Tribunal to decide whether something amounts to a protected act under the legislation.

Decision

The Employment Tribunal (“ET”) dismissed the claim, rejecting all of Mr Page’s claims. He submitted an appeal on the grounds that the ET failed to analyse why the protected act was severable, misapplying the principles in Martin v Devonshire Solicitors, and failed to correctly apply Article 10 of the European Convention on Human Rights (“ECHR”).

The Employment Appeal Tribunal (“EAT”) dismissed the appeal, concluding that the ET had not erred in concluding that the words spoken by Mr Page did not amount to a protected act and that his removal from the magistracy was a proportionate limitation on his right to freedom of expression and was necessary to preserve the authority and impartiality of the judiciary. The EAT confirmed that judges are permitted to speak out on matters of controversy, however in doing so, they must not undermine judicial impartiality or respect for the judiciary. In this case Mr Page failed to carry out his judicial responsibilities in a non-biased manner and further did so in a public manner, disregarding Magistrates conduct in engaging with the media.

Comment

This decision emphasises the importance of employers and employees acting in a non-discriminatory manner and following the appropriate procedure prescribed by your employer or organisation when raising matters with the media.

Just because one person has a protected characteristic which may be at odds with the status of the protected characteristics of a different group or individual does not give you the legal right to behave in a way which denies that group the provision of a service on equal grounds to others. In essence it is important to view the protections given under the Equality Act as a “shield” and not a “sword” with which to justify unlawful and prejudicial discriminatory conduct. Further, it highlights that a finding of a protected act will only be made where a Claimant makes specific reference to his “protected characteristic” and makes an allegation of discrimination.

Case reference: Page v Lord Chancellor and other UKEAT/0304/18/LA

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