Defining the limits of free speech for those holding senior roles in public bodies

In two related appeals, the Court of Appeal has explored the limits that employers can legitimately place on the freedom of expression of their senior staff.

Richard Page, the appellant in both appeals, is a Christian with strongly-held religious beliefs about homosexuality. He was both a lay magistrate and a non-executive director of an NHS Trust. He was dismissed from both roles following remarks he made about same-sex adoption in various media interviews, which he said were expressions of his religious beliefs.

He challenged these decisions in two separate employment tribunal claims, which were both unsuccessful. His appeals to the Employment Appeal Tribunal were dismissed in 2019. His further appeals to the Court of Appeal have now also been dismissed.

Many factual elements in these cases were highly unusual. However, the Court of Appeal ended its judgment in the NHS appeal with some more general observations about the limits of free speech for the people holding senior positions in public sector organisations.

It reiterated that Christians should not be expected to remain silent about their beliefs simply because they may be unpopular – or even offensive to some people. However, it said that there were circumstances where it was right to expect Christians (and others) who work for an institution to accept some limitations on how they expressed their beliefs in public on “matters of particular sensitivity”. That was particularly so if they held a “high profile” position.

It went on to add, that whether such limitations were justified in a particular case could "only be judged by a careful assessment of all the circumstances of the case". It was necessary "to strike a fair balance between the rights of the individual and the legitimate interests of the institution for which they work”.

The language used here reflects the fact that Mr Page’s challenge to the Trust’s decision focused on Article 9 of the European Human Rights Convention (the right to freedom of thought, conscience and religion) which was directly binding on his employer because it was a public authority. However, it is likely that employment tribunals would undertake a similar balancing exercise when deciding whether a similar decision of a private sector employer was a fair or unfair dismissal, or discriminatory on grounds of religion.

As far as Mr Page’s NHS-related claim was concerned, what turned out to be crucial was his employer’s concern that his remarks might deter mentally ill gay people from engaging with its services; this was not a case of “generalised perceived reputational damage to the Trust”. In addition, Mr Page had received warnings about the consequences of his remarks, and was only removed from office after he had repeated them.