Discrimination: Dealing with conflicting protected characteristics

11 Jul 2019

Rugby player Israel Folau has been in the headlines, following his sacking from Rugby Australia after posting on Instagram that “hell awaits” homosexuals. His comments reflected his religious views. The matter has divided opinion, some denouncing his comments as homophobic but others backing his right to express his religious views.

From time to time, employers in the UK will face similar conundrums, where there is an apparent clash between two protected characteristics. In those circumstances, which trumps the other? Can an employee be reprimanded for expressing their religious views without that reprimand being an act of discrimination in itself?

This issue arose in the recent case of Page v NHS Trust. Mr Page was a non-executive director of an NHS Trust.  He also worked as a magistrate and, when dealing with a same-sex couple adoption application, he expressed his belief that a child should be brought up by a mother and a father and that it was “not normal” to be adopted by a same-sex couple. Mr Page then gave an interview to the Mail on Sunday and took part in a radio phone-in and repeated his views, expressing them as his Christian beliefs. When the NHS Trust found out, they warned him that his expression of views could undermine confidence that he would do his job impartially and they instructed him to inform them of further media interest. Despite this, Mr Page continued to give interviews on the subject in the media, commenting that he believed that homosexual activity was wrong and that he did not agree with same-sex marriage. The NHS Trust chose not to renew his term of office.  Mr Page brought claims of discrimination against them.

Mr Page lost his claim. The conclusion reached was that Mr Page had not been removed from his position because of his religious beliefs or his right to express those beliefs. He had been removed because he had spoken to the media repeatedly without informing the NHS Trust, despite their specific requests to seek permission. Further, the manner in which he had expressed his views suggested that he was unable to distinguish between his personal views and what was appropriate for someone in a high profile position to say to the media. Mr Page had the right to express his religious views, however he did not need to give interviews or make the remarks in the manner he did in order to manifest his faith.

The key learning point for employers arising from this case is that, when faced with such a situation, the area of focus should be on the behaviour of the individual.  When there is a clash between religious beliefs and another protected characteristic, in most cases a problem will only arise because of the way in which one side or the other behaves.  In Israel Folau’s case, the issue for Rugby Australia was not that he had his religious beliefs but, as a role model, he had expressed those views on social media. With Mr Page, he disobeyed a direct instruction and chose to give his views repeatedly in the media. If conduct can be distinguished from the protected characteristic itself, it should be perfectly possible to deal with that conduct in the normal way.

For further information or advice, please do not hesitate to contact Will Walsh, Partner in the Employment Team.

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