Why NHS leader was 'wrong' to carry out media interviews about his opinions
While Northern Ireland eagerly awaits the arrival of the UK's highest court to consider the Asher's 'gay cake' case, in the recent English case of Page v NHS Trust Development Authority , an employment tribunal rejected a claim of religious discrimination by a non-executive director who was opposed to same-sex adoption.
Mr Page, a devout Christian, held office as a non-executive director of the Kent and Medway NHS Trust from 2012 to 2016. Mr Page also sat as a lay magistrate. In December 2014, the Lord Chancellor and Lord Chief Justice reprimanded Mr Page for a decision he made in an adoption case involving a same-sex couple. It was found that he had been influenced by his religious beliefs in coming to his decision.
However, following this reprimand, Mr Page gave interviews to local and national media outlets, where he was quoted as saying "I think there is something about a man, a woman and a baby … that it's natural and therefore the others are not." At least one of the interviews made a reference to Mr Page's work in the NHS.
In light of the publicity, Mr Page was advised by the chairman of the NHS Trust that expressing such views in the media was likely to have a negative impact on the trust's stakeholders, and the commitment of the trust to promote equality for all LGBT people. He was also informed that his failure to inform the Trust of his decision to speak to the media was unacceptable.
Mr Page accepted that he should have informed the Trust in advance before speaking to the media but was unapologetic as to the content of his statements.
Mr Page was later removed from the magistracy by the Lord Chancellor for making further statements to the media on the basis that his "comments on national television would have caused a reasonable person to conclude that he was biased and prejudiced against same-sex adoption". The day after his removal as a lay magistrate, Mr Page appeared as a guest on the television programme Good Morning Britain, where he was interviewed by Piers Morgan on his views. Again, Mr Page failed to inform the Trust of his decision to appear on the popular breakfast television programme.
Thus, the Trust decided to remove Mr Page from his position of non-executive director, which resulted in Mr Page bringing proceedings for direct and indirect religious discrimination, harassment and victimisation.
Following a hearing, the tribunal held that there was no direct religious discrimination. Mr Page had not been removed as a result of his beliefs or his expression of them; he was removed from his post as a result of his frequent media appearances, against the specific requests of the Trust. It was also held that in speaking to the media, he was unable or unwilling to distinguish between his personal views, and what was appropriate for a professional of his standing to say to the media.
The tribunal also held there to be no indirect discrimination, victimisation or harassment. The tribunal determined that Mr Page's Article 9 right to freedom of thought, conscience and religion was not engaged, because his actions in giving media interviews were not "intimately linked to his religion".
The tribunal drew a clear distinction between the personal beliefs of Mr Page and the manner of the expression of said beliefs.
Toni Fitzgerald Gunn is a solicitor in Worthingtons Commercial Solicitors, Belfast, where she specialises in Employment Law. She can be contacted on 028 9043 4015