Over recent years there have been a number of cases looking at the tension between the protected characteristics of sexual orientation and religion and belief. In Page v Lord Chancellor, the issue returned and the Court of Appeal had to consider whether a magistrate had been victimised when he was removed from office following his disapproval of same-sex adoptions and public comments to the press.
Mr Page is a practising Christian and, at the relevant time, was a magistrate hearing criminal and family cases. As part of a panel hearing the adoption application for a same-sex couple, Mr Page expressed certain views, based on his religious beliefs, regarding the appropriateness of the adoption. A complaint was made against him as a result. Mr Page was given a reprimand and required to attend remedial training.
The issue then began to appear in the press and Mr Page made an appearance on the BBC. Among other things, he told the BBC that, “My responsibility as a magistrate, as I saw it, was to do what I considered best for the child and my feeling was therefore that it would be better if it was a man and a woman who were the adoptive parents“.
New disciplinary proceedings were commenced and it was determined that his comments had brought the magistracy into disrepute. This conclusion was reached on the basis that the views he had expressed to the press did not reflect the law, and his conduct had not been in accordance with his judicial oath. A reasonable person would conclude from his statements that Mr Page would be biased and prejudiced against same-sex adopters. As a result, Mr Page was removed from the magistracy.
Mr Page brought a number of claims, including claims for victimisation and infringement of his right to freedom of expression. He lost these claims at first instance, appealed but lost again at the Employment Appeal Tribunal, and then turned to the Court of Appeal.
The Court of Appeal also dismissed his appeal. The key issue by this stage was whether or not Mr Page had been removed because he had complained of discrimination i.e. had he been victimised. The Court of Appeal determined that this was not the reason for his removal. He had been removed because of his public statements that, in same-sex adoption cases, he would proceed on the basis of his own beliefs and not on the basis of the law or evidence. This plainly brought the magistracy into disrepute. His removal had been lawful and there had been no breach of his human rights.
So, what does this tell us about the balance between competing protected characteristics? In fact, this case is perhaps less of a true clash of rights than the headlines (including our own!) may suggest. The case was not concerned with whether Mr Page had been discriminated against because of his religious beliefs, but whether he had been removed for complaining about having been discriminated against. A subtle but important distinction. For many employers, that distinction will be tricky to navigate. In practice, it will always pay to proceed with an abundance of caution in cases where victimisation or retaliation could be alleged.
