The claimant in these conjoined cases was a non-executive director of the NHS Trust as well as being a Lay Magistrate.  The issue arose when the claimant gave some media interviews where he expressed views, based upon his Christian belief, against same-sex adoption and homosexuality.  The Trust warned the claimant about his public expression of views, but he continued with an interview on BBC Breakfast News where he suggested, inter alia, that he had been disciplined because of his religious views.  As a result of this, he was removed from the non-executive directorship with the Trust as well as his position as Lay Magistrate. The reasons given by the NHS Trust premised on the fact that his actions may impact on the ability to engage with gay service-users and that the claimant had indicated no insight as to why his comments could be perceived as problematic.  Similarly, with the position of Magistrate, the reason was that he would be sitting on some sensitive issues and it could also involve family court decisions involving adoptions.

The claimant brought claims against both the Trust and Lord Chancellor for direct and indirect discrimination on the basis of religious belief as well as victimisation and harassment claims.   The ET and EAT dismissed the claims stating that there was inappropriate conduct in publicly displaying a bias, especially when it came to being a Magistrate.   This was contrary to the judicial oath and could bring the judiciary into disrepute.  For that reason, the decisions made by the Trust and Lord Chancellor were not based on the claimant’s beliefs or because of any protected act but instead on the basis of the public expressions made and how they could be perceived.

On appeal to the Court of Appeal, the claimant argued that the Tribunal(s) had erred in relying upon Martin v Devonshires Solicitors.  The EAT held that the dismissal in response to a complaint of discrimination may not be unlawful if the reason for dismissal was not the complaint per se but some feature of it.   The Court of Appeal outlined that the Lord Chancellor had said nothing about the issues of discrimination but rather it was the misconduct about how what the claimant had said could affect the performance of his duties.  It was for the claimant to show that that was not the real reason.  This was not done.

The claimant raised a second issue under Article 10 of the ECHR, that being the freedom of expression.  The Court of Appeal did doubt the Tribunal’s initial decision which found that Article 10 was not engaged at all.  Notwithstanding, it was held that there was no breach of Article 10 as any interference from the Lord Chancellor and Trust was justified.   This was on the basis that the public statements had compromised the Claimant’s impartiality and could adversely affect the services offered.  Therefore, the interference was justified, and the action taken was proportionate.

Similar arguments were raised on the Freedom of Religion under Article 9 yet this was rejected as the right was not engaged - the European Court of Human Rights has stated that there must be a closeness and directness to the religious belief yet the claimant argued his points on ‘traditional family belief’ rather than Christian beliefs.  Accordingly, the claimant’s case was dismissed.

Practical Lessons

This case demonstrates the competing battle, in some situations, between religious belief and the freedom of expression and demonstrates that the effect of the expressions must be taken into account. Therefore, as the claimant would have been adjudicating upon adoption cases it would then be wrong to make public statements about who should and who should not be able to adopt.  Similarly, public statements and the ramifications on particular organisations that the claimant is connected to also have to be taken into account.  As it could harm the efforts of the Trust, it was held that the actions taken by both respondents was proportionate and there was no discrimination or breach of human rights.

EWCA 254: https://www.bailii.org/ew/cases/EWCA/Civ/2021/254.html

EWCA 255: https://www.bailii.org/ew/cases/EWCA/Civ/2021/255.html