Religious expression and sexuality – the difficult balancing act

As you may have noticed from our rainbow logo and new email signatures, Wiggin is proudly celebrating its inaugural Pride Week. We strive to be a fair, inclusive and diverse place to work and our internal LGBTQ+ network are hard at work putting on a range of internal Pride themed events to celebrate what has been achieved in the last 50 years and highlight where progress still needs to be made.

With this in mind, we felt it was an appropriate time to report on two recent Employment Appeal Tribunal (EAT) cases which highlight the clash that can often arise between the protected characteristics of religion and belief on the one hand and sexual orientation on the other. Employers can sometimes face a difficult task balancing these competing rights. To what extent must negative views of homosexuality expressed under the guise of religious freedom of expression be tolerated?

This is not a new issue and has been considered in a number of cases since the introduction of the Equality Act in 2010. The principle that has developed throughout the case law is that while employers should be careful not to discriminate against employees who hold certain religious beliefs, this does not give those employees a free ride to manifest or express those views regardless of the impact on others.

In the recent case of Page v NHS Trust Development Authority, this principle was upheld. The case involved a Christian non-executive director, Mr Page, whose term was not renewed after he spoke out in public against homosexuality. Mr Page had given several interviews to the media in which he made it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage. This included him expressing the view that adoption by a same sex-couple could not be in the best interests of a child.

The director claimed he had been discriminated against on account of his religious views but was unsuccessful in his claim. The EAT held he was not removed for his views but instead because he repeatedly expressed these to the media without first informing the Trust, despite direct and repeated requests for him to seek permission before doing so.

In Page v Lord Chancellor/Secretary of State for Justice (a similar case also reported recently and strangely involving another, different Mr Page), the EAT held the that a Christian magistrate did not suffer discrimination when he was removed from office after expressing to the press his disapproval of same-sex adoptions. Mr Page had previously received judicial advice regarding media contact and had been told to avoid making comments that could damage the judiciary and call its impartiality into question. The EAT felt he had disregarded this – they considered Mr Page’s remarks would lead a reasonable person to conclude that he would always decide a particular type of case in a certain way irrespective of the evidence or the law. This meant that he could potentially flout his judicial oath of impartiality and bring the judiciary into disrepute.

While these are both helpful decisions, the issues were relatively easy for the EAT to navigate. In the first case, Mr Page had clearly acted in breach of a direct instruction by the Trust and in the latter, Mr Page’s conduct was effectively distinct from the allegation that he had been discriminated against. It’s possible the decisions could have been different if the opinions had been expressed in private and these had then been overheard and made public.

What’s clear from the cases is that freedom of expression is not an unfettered right. The case law as a whole suggests that the courts and tribunals are willing to take a dim view of religious expression where this impacts on the rights of other protected groups, particularly those with different sexualities.

This should give confidence to employers who want to take a stand in this area. From a practical perspective, the recent cases indicate the benefits in an employer having a clear policy on what views should (and perhaps more importantly should not) be expressed in public or to the media. Some employers may want to go even further. Many bullying and harassment policies now prohibit the expression of religious views in circumstances where this amounts to unlawful harassment. Provided such policies are proportionate and applied equally to all religious groups, it’s difficult to imagine employees being able to challenge these successfully.