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Volume XI, Number 110

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Using religious belief as a defence to misconduct (UK)

Mr Page was a magistrate of strong Christian conviction.  After many years’ blameless services in that role he began to hear family cases and in 2014 he presided over an adoption application by a same-sex couple.  All the other factors pointed in favour, but Page refused to sign off on it on the grounds of his religious beliefs.  He was sworn to act in the best interests of the child, he said, and in his view that was to provide it with a mother and a father because that was “natural”.  It was not that he was flatly against same-sex adoptions as such, he told colleagues, but he just wasn’t sure that they were as successful and so they would get the green light from him only when there was no other option available.

This landed Page in front of a Conduct Panel which issued him with a reprimand.  His duty as magistrate was to decide cases on the evidence in front of him, all of which pointed to that adoption proceeding, not on the basis of his own personal views of what constituted the ideal adoptive parents.  He was also required to undergo remedial training before being allowed to resume his sitting duties.

Page considered that this was discrimination against him on the grounds of his religious views and that it infringed his rights and freedoms to hold and express them.  He took his concerns to the press, giving what were found to have been inaccurate interviews to two newspapers from which it was clear that the remedial training had been wholly without impact on him, almost as if it had never happened.

The interviews earned him a further poke in the eye, since on becoming a magistrate he had received the standard advice that he should not engage with the media, which he had clearly ignored.  Very shortly after that reminder not to engage with the press, but serenely unheeding of it, Page chose to appear on BBC Breakfast.  Here he made clear in effect that where his Christian principles as to appropriate adoptive parents clashed with his duties under the law, he would still go with the principles.  He was then removed from the role of magistrate with immediate effect.

Page’s claims of religious discrimination, harassment and victimisation by the Lord Chancellor’s Department (which effectively runs the judiciary) were all dismissed by the Employment Tribunal, but the victimisation claim (that he had been dismissed as magistrate by way of retaliation for his complaints about the reprimand) reached the Court of Appeal.  Here his argument was a simple one – since the termination of his office was admitted to be a direct consequence of his television comments about his faith and his feeling that the reprimand was discriminatory, how could it be said that it wasn’t victimisation?

The Court of Appeal rejected Page’s arguments quickly, in fact so quickly that it did not even wait to hear Counsel for the LCD on why that was the appropriate course.

First, it approved (perhaps unsurprisingly, as it was the same Judge) the old distinction in Martin – v- Devonshires Solicitors between the fact of a discrimination complaint, which you could not safely react badly to, and the manner of its making, which you could.  It was not that Page had thought the reprimand  to be discriminatory which was the issue, but that he had expressed that unhappiness on national television in breach of both the advice about speaking to the media and the clear instructions he had received through the reprimand about placing of his judicial duties above his faith.  Public confidence in the impartiality of the Magistracy and the wider judicial system could easily be shaken by such statements, thought the Court of Appeal.

The Court therefore found that there was a reason for removing Page from his magistrate role which, though obviously related to the discrimination complaint, was clearly distinct from it.  Therefore he had not been victimised and his afternoon ended with a costs award against him of over £16,000.

But where does the line between religious objection and misconduct lie?  If Page had told his Court Clerk in advance that, sorry, he did not feel he could do that particular adoption hearing because of his personal views, that would perhaps have been an administrative pain in terms of finding another magistrate, but would not on its face have been misconduct. The Court of Appeal said that was what he should have done.  He could have offered to swap cases with another magistrate, or asked to move off adoption cases altogether.  Given some advance notice, the Magistrates Court would have been obliged to accommodate that if it reasonably could.  The same is true of any other employer in similar circumstances, whether the objection is to working at particular days or times of religious significance, or handling certain foods or alcohol.  If religious objections to particular parts of a role can reasonably be accommodated, they should be, but if they can’t then that is the end of the matter and then , put bluntly, the employee must make his own decisions about which of his job and his god matters to him more.

However, the right to consideration of some possible accommodation or compromise after timely and grown-up discussion between employee and employer is a very different thing from the unilateral repudiation by the employee of some key aspect of the job, especially without prior notice and even more so if the employer is confronted with the fact of the non-performance only afterwards.  In the end, there was no compromise which could be made in relation to Page’s stated intention to continue to place his beliefs above his judicial duties, even before it got to his decision to fight that particular battle from the witness stand of the BBC Breakfast sofa.

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 64
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

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