UK: Court of Appeal rules on employer limits on public expression of beliefs

The Court of Appeal has made clear that employers may be able to expect individuals, particularly those holding high profile positions, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. The extent to which limitations are justified will be fact-specific, depending on striking a fair balance between the rights of the individual and the legitimate interests of the employer.

In Page v NHS Trust Development Authority, Mr Page was a Christian magistrate sitting on family cases, who spoke out in public against same-sex couple adoption and his consequent removal from the magistracy.  He was also a non-executive director of the NHS Trust, which had a genuine and reasonable concern that the expression of his views about homosexuality in the national media risked impairing its own ability to perform its healthcare function (including providing services to homosexual people with mental health difficulties).

The Court held that his removal as NED for repeatedly speaking to the media about his views without permission was not unlawful belief discrimination.  He was removed because of the inappropriate manner in which he manifested his beliefs, and not because of his beliefs/their manifestation - the Court accepted that such a distinction can validly be made and therefore there was no direct discrimination. Any indirect discrimination or restriction on human rights was justified in the circumstances, given the Trust's legitimate concerns, and the claim to victimisation was also dismissed on the facts as the reason for his removal was the public expression of his views and not his allegation that he had been discriminated against.  Permission to appeal was refused.

The Trust was assisted in this case by its clear instruction requiring the individual to seek permission before speaking to the media, which Mr Page repeatedly ignored.  As the Court pointed out, had Mr Page been willing to comply with this policy, it might have been possible to co-operate to find a way to allow him to express his views while also addressing the sensitivities and the consequent potential impairment of the Trust's ability to perform its core functions.  The position is likely to be different for those in less high profile roles, where there might be no reason to suppose that their expression of their views would have any impact on how the public might engage with the relevant services.