Page v NHS Trust Development Authority [2021] EWCA Civ 255

In brief

The Court of Appeal (Underhill LJ giving the judgment, with Peter Jackson LJ and Simler LJ agreeing) dismissed Mr Page's appeal against the Employment Appeal Tribunal's dismissal of his appeal from the Employment Tribunal, which had rejected his claims against the NHS Trust Development Authority of direct and indirect discrimination by reference to religion or belief and of victimisation. It held that the Tribunal was entitled to find that the Authority did not infringe his Convention rights, and that it made no error of law in finding that the Authority acted because of the way he expressed his views in the national media and not because of his religion or belief. The indirect discrimination appeal failed because the Tribunal's finding on justification was not challenged; the victimisation appeal failed because the Tribunal's finding that the protected acts played no part in the Authority's reasons was a finding of fact which Mr Page did not submit was not open to it on the evidence, and the Court rejected both pleaded victimisation grounds. Underhill LJ added that the decision was on the facts of the particular case and that wider conclusions should not be drawn from it.

Key provisions

• para-68 — Section 13: holding or manifesting a belief, and objectionable manifestation : Per [68], in a direct discrimination claim the question is whether the protected characteristic was the reason for the act, so the putative discriminator's reason must be characterised in every case. The EAT case law distinguishes (1) the case where the reason is that the claimant holds or manifests the protected belief from (2) the case where the reason is that the claimant manifested it in some particular way to which objection could justifiably be taken; in the latter case the objectionable manifestation, not the belief, is the reason for the act. Per [68], if the consequences are not such as to justify the act, they cannot sensibly be treated as separate from an objection to the belief itself.
• para-74 — The distinction is endorsed and corresponds to Article 9 : Per [74], so far as Underhill LJ was aware the distinction applied by the Tribunal had not been endorsed in the Court of Appeal, but it is plainly correct: it conforms to the orthodox analysis deriving from Nagarajan, because the mental processes that cause the respondent to act do not involve the belief but only its objectionable manifestation, and it achieves substantially the same result as the Article 9 distinction between the absolute right to hold a belief and the qualified right to manifest it; it is highly desirable that domestic and Convention jurisprudence correspond.
• para-54 — The primary element of the justification: the risk of deterring gay people with mental health difficulties from using the Trust's services : Per [54], the primary element in the justification was the Tribunal's finding of a genuine and reasonable concern that the claimant's expression in the national media of his views about homosexuality risked impairing the willingness of gay people with mental health difficulties to engage with the Trust's services. Per [55], there was no challenge in the Court of Appeal or the EAT to the factual basis of that justification, so it was accepted that the Tribunal was entitled on the evidence to find the concerns reasonable.
• para-60 — Three reasons the Tribunal was entitled to strike the balance in the Authority's favour : Per [59], whether a person in a senior role in a public body may be expected to refrain from expressing views that may upset a section of the public can only be decided on the facts of each case, and this was not a case in which it was obvious from the start that the proportionality balance came down in the Authority's favour, although the Court held the Tribunal was entitled to reach its conclusion for three reasons. Per [60]-[62], three matters supported the Tribunal's balance: the views went beyond a sceptical opinion on same-sex adoption and included same-sex marriage and homosexual activity [60]; the justification was not merely that some members of the public might find the views offensive but the specific risk that a board member's views might deter mentally ill gay people from engaging with the Trust, which relates to its core healthcare functions [61]; and the claimant's conduct made it in practice impossible to find a way forward that respected both parties' interests [62]. Per [58], the Court would interfere with the Tribunal's balance only if satisfied it was wrong.
• para-101 — Limits of the decision : Per [101], the freedom to express religious or other beliefs cannot be unlimited; there are circumstances in which it is right to expect people who work for an institution, especially in a high-profile position, to accept some limitations on how they express beliefs on matters of particular sensitivity, which can only be judged by a careful assessment of all the circumstances striking a fair balance between the individual's rights and the institution's legitimate interests. Per [101], the courts have shown themselves astute to protect the freedom of Christians to manifest beliefs on matters of traditional Christian teaching.

When relevant

Disciplinary or appointment decisions where a person has publicly expressed a religious or philosophical belief, especially in a high-profile role in a public-facing service; the section 13 distinction between belief and objectionable manifestation [68], [74]; and the evidence that supported justification [54]-[62]. A religion or belief case about views on homosexuality and same-sex adoption; it decides nothing about gender reassignment or trans people. Decision support, not legal advice.