Richard Page v NHS Trust Development Authority
| Jurisdiction | England & Wales |
| Judge | Peter Jackson LJ,Lord Justice Underhill,Simler LJ |
| Judgment Date | 26 February 2021 |
| Neutral Citation | [2021] EWCA Civ 255 |
| Date | 26 February 2021 |
| Docket Number | Case No: A2/2019/1712 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 255
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Choudhury P, Mrs K Bilgan and Mr M Worthington
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Peter Jackson
and
Lady Justice Simler
Case No: A2/2019/1712
Mr Paul Diamond (instructed by Andrew Storch Solicitors) for the Appellant
Ms Betsan Criddle (instructed by Hempsons) for the Respondent
Hearing dates: 3 rd and 4 th November 2020
Approved Judgment
INTRODUCTION
This is one of two appeals to this Court based on the same sequence of events and with the same Appellant, Mr Richard Page. I will refer to the case in which it arises as “the NHS case” and to the case giving rise to the other appeal as “the magistracy case”. The appeals were heard consecutively in the same hearing, but we are giving separate judgments in each. In both appeals the Appellant was represented by Mr Paul Diamond of counsel. The Respondent in this appeal was represented by Ms Betsan Criddle of counsel.
The Appellant's claim arises out of disciplinary action taken against him as a Non-Executive Director of the Kent and Medway NHS and Social Care Partnership Trust (“the Trust”), which is responsible for the delivery of mental health services in Kent. The action followed media interviews, including two on national television, in which he expressed views, rooted in his Christian faith, about adoption by same-sex couples.
The impugned decisions were taken not by the Trust itself but by the Respondent, a body called the NHS Trust Development Authority (“the Authority”) which is responsible for the appointment and tenure of NHS Trust Non-Executive Directors. The Authority is part of a group of NHS entities operating under the name “NHS Improvement” (“NHSI”). The Authority's Termination of Appointments Panel (“the TAP”) made findings which would normally have led to the termination of the Appellant's appointment as a Director. In fact, by the time that it made its decision his current term had expired, but the practical effect of its findings was to prevent him from applying to serve a further term or serving as a Non-Executive Director of a different Trust. That being so, sacrificing strict accuracy for the sake of convenience, I will refer to it as “the termination decision”.
On 17 November 2016 the Appellant commenced proceedings against the Authority on the basis that the termination decision, and the suspension and investigation which led to it, constituted unlawful discrimination and harassment by reference to his religion or belief, and also victimisation, contrary to Part 5 of the Equality Act 2010. 1
The Appellant's claim was heard by an Employment Tribunal sitting at London South, comprising Employment Judge Bryant, Ms H Bharadia and Mr J Gautrey, over four days in August 2017. He was represented by a Mr Pavel Stroilov (who was not a practising lawyer). The Authority was represented by Mr David Massarella of counsel. By a Judgment and Reasons sent to the parties on 18 October 2017 the claim was dismissed in its entirety.
The Appellant appealed to the Employment Appeal Tribunal, where the appeal proceeded only as regards the discrimination and victimisation claims. It was heard on 22 January 2019 by a constitution consisting of Choudhury P, Ms K Bilgan and Mr M Worthington. The Appellant was represented by Mr Diamond; the Respondent was
represented, as in the ET, by Mr Massarella. By a judgment handed down on 19 June the appeal was dismissedThe Appellant was also for many years a magistrate. He was removed from that role for publicly expressing similar views to those which led to the termination decision in the present case. He brought proceedings against the Lord Chancellor and the Lord Chief Justice arising out of his removal: that is the “magistracy case” to which I have referred above. His claim was dismissed by a (different) Employment Tribunal. His appeal to the EAT was heard by the same constitution as the appeal in this case, though on a different occasion, and its judgment was handed down on the same day.
The Appellant's application for permission to appeal against the decision of the EAT was supported by grounds and a skeleton argument settled by Mr Diamond. When I gave permission I was critical of some aspects of the skeleton argument, and I asked that the version filed following the grant of permission be more closely cross-referred both to the pleaded grounds and to the paragraphs in the Reasons of the ET and the judgment of the EAT that were said to be wrong in law. A replacement skeleton argument was in due course filed. It was signed by the Appellant's solicitors, but Mr Diamond told us that it was in fact settled by him. No doubt in response to my request, it was very different in both form and substance from the earlier skeleton argument and avowedly did not follow the structure of the grounds of appeal. Mr Diamond's oral submissions were fairly short, and, if I may say so, not always clearly focused on the legal issues, and when in doubt I have treated the replacement skeleton argument as the authoritative statement of the Appellant's case on the appeal.
THE FACTS
At para. 11.1 of its Reasons the ET found as follows:
“The Claimant is a devout Christian. He also firmly believes that it is always in the best interests of every child to be brought up by a mother and a father. He therefore believes, as he accepted in evidence, that it is not in the best interests of any child to be adopted by anyone other than a mother and a father. He said that it is ‘not normal’ to be adopted by a single parent or same sex couple.”
The Appellant had a successful career in finance for many years, latterly in senior roles in the NHS. He was appointed a Non-Executive Director of the Trust in June 2012. The appointment was for a four-year term. The Chair of the Trust at that time was Mr Andrew Ling. The ET found that the Appellant took a “hands on” approach to his role and had a high profile within the Trust.
The Appellant was also a magistrate, sitting on the Central Kent bench, where he was a member of the family panel. In December 2014, following a formal disciplinary process, he was reprimanded by the Lord Chief Justice as a result of an incident in which he declined to agree to the adoption of a child by a same-sex couple. The details are immaterial for the purpose of this appeal, though they can be found in our judgment in the magistracy case. The reprimand was reported in the press, and it is clear that the Appellant had spoken to reporters about it and expressed his views about same-sex adoption.
The Appellant did not inform the Trust or the Authority about the disciplinary action taken against him by the Lord Chief Justice or about his contacts with the press. However, they came to Mr Ling's attention, and he arranged to have a meeting with the Appellant on 22 January 2015 to discuss the matter. The day before the meeting the Appellant participated in a live radio phone-in on the same subject on Radio Kent. Again, he did not inform the Trust beforehand. At para. 11.18 of its Reasons the ET found that at the meeting:
“… The Claimant confirmed that he had given an interview to the Mail on Sunday and had taken part in a radio phone-in the day before the meeting. Mr Ling asked the Claimant to consider whether readers of the newspaper and/or listeners to the radio phone-in might make a connection between the views he was expressing about same sex couples and his role with the Trust. The Claimant said that he had not thought about that. Mr Ling asked him why he had not alerted the Trust to the impending media coverage. He again said that he had not thought about it. Mr Ling told the Claimant that it was important that he alert him if there was going to be any further media coverage.”
On 3 February 2015 the Trust received a complaint from the Chair of its LGBT Staff Network, referring to the views expressed by the Appellant in the media. The complaint described them as “highly offensive to same sex parents” and said that it would be “highly damaging if the LGBT community, and society in general, were to see [the Trust] as harbouring this type of opinion without action”. Mr Ling then arranged to meet the Appellant again, together with the Trust's Chief Executive, on 11 February 2015. At the meeting the Appellant confirmed his view that children need a mother and a father and that he stood by that view. He was asked to give an assurance that he would not express his views in a public forum but he would not do so. He did, however, accept that he should have told the Trust about his contact with the media.
In a letter following the meeting Mr Ling reiterated that the Appellant's public expression of his views in the media could undermine confidence that he would exercise his judgment in a way that was not affected by those personal views. In a reply dated 12 March 2015 the Appellant said that he was sorry that there had been an impact on the Trust. He apologised for any problems that he might have caused and confirmed that his actions, discussions and decisions within the Trust would continue to conform strictly with the Trust's policies and procedures and with the standards for NHS Boards.
As between the Trust and the Appellant the matter rested there for the remainder of 2015. However, the ET noted, at para. 11.23 of its Reasons, that:
“Unbeknownst to the Trust or [the Authority], the Appellant continued to engage with the media. On 12 March 2015, the same day as the Appellant's letter as mentioned above, he appeared live on BBC Breakfast News and, as the tribunal understands it, made much the same...
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