Held, appeal dismissed. The tribunal had begun its discussion of the issues by considering articles 9 and 10 of the Human Rights Convention. It had no jurisdiction to entertain any claim for a breach of the claimant’s Convention rights as such. However, by virtue of sections 3 and 6 of the Human Rights Act 1998 it was obliged to determine his claims under the Equality Act 2010 compatibly, so far as possible, with his Convention rights. There did not need to be a rule that in every case of religion or belief discrimination a tribunal should start by deciding whether there had been a breach of the claimant’s relevant Convention rights, which could then inform its analysis of the claim under the 2010 Act. It was, ultimately, the 2010 Act from which the claimant’s rights should derive, and there could be nothing wrong in a tribunal taking that as the primary basis of its analysis. But of course if there was reason to believe that a particular approach or outcome might involve a breach of the claimant’s Convention rights that question should be fully considered (para 37).

The tribunal was correct to find that article 9 of the Convention was not engaged. The primary focus of what the claimant was saying was his belief about the importance of a child having a mother and a father. The fact that the belief was rooted in his religious faith was part of the context, but the interview could not be characterised as a “direct expression” of the claimant’s Christianity. If, however, article 9 were engaged, the essential task of the tribunal in the circumstances of the present case was to balance the infringement of the claimant’s right to express in public beliefs that were evidently important to him against the importance to the trust of mitigating or avoiding the risk of damage to its work from his remaining in post. The extent to which it was legitimate to expect a person holding a senior role in a public body to refrain from expressing views which might upset a section of the public was a delicate question which could only be decided by reference to the facts of each particular case. It was right to acknowledge that the claimant had a particular interest in expressing publicly his views about same-sex adoption in the context of his removal as a magistrate, which was a legitimate matter of public debate: his media appearances were not in that sense gratuitous. It was also right to acknowledge that he expressed his views in temperate terms. The case was not, therefore, one in which it was obvious from the start that the proportionality balance came down in the authority’s favour. However, there were three reasons in particular why the tribunal was entitled to reach the conclusion that it did. First, the claimant’s expressed views about homosexuality went beyond a sceptical opinion on same-sex adoptions. They included opinions also on same-sex marriage and “homosexual activity” and were accordingly the more likely to cause offence or invite misinterpretation. That was not by itself sufficient to justify the trust or the authority objecting to his expressing them in public: after all, they reflected the traditional teaching of Christianity and indeed other religions. But it was important to identify from the start what the views were. Secondly, the case was not one where the justification advanced was merely that some or many members of the public, or members of the trust’s staff, both gay and straight, might find the claimant’s views about homosexuality offensive or disturbing; nor was it based on some generalised perceived reputational damage to the trust. On the contrary, it was based specifically on the risk that the fact that a member of its board held the views that the claimant did about homosexuality might deter mentally ill gay people in the trust’s catchment area from engaging with its services. That risk related directly to the ability of the trust to perform its core healthcare functions. It was not part of the claimant’s case that the risk was unreal. Third, the claimant’s conduct made it in practice impossible to try to find a way forward that might have respected both parties’ interests. One approach that might have been considered would have been for the trust and the authority to accept the legitimacy of the claimant expressing his views about same-sex adoption, but for him to acknowledge the sensitivities and the consequent potential for damage of the kind noted above, and to engage with the trust about how to best to address those sensitivities. But it was clear from the history that neither the trust nor the authority could have any confidence that the claimant would reliably co-operate in that way. As to article 10, there was no real distinction between the issues raised under article 9 and article 10, at least as regards justification. Accordingly there was no infringement of the claimant’s Convention rights ( paras 48, 59–62, 67).

It might be thought to follow that the authority could not have discriminated against him on the grounds of his religion or belief, since the relevant protections under the Convention and the Equality Act 2010 should be intended to be co-extensive. In the court’s view that was indeed the case, but that did not absolve it from considering the issues through the lens of the 2010 Act, which should be the formal basis of the claimant’s claim. In a direct discrimination claim the essential question was whether the act complained of was done because of the protected characteristic, or, to put the same thing another way, whether the protected characteristic was the reason for it. It was thus necessary in every case properly to characterise the putative discriminator’s reason for acting. In the context of the protected characteristic of religion or belief the case law of the Employment Appeal Tribunal had recognised a distinction between (1) the case where the reason was the fact that the claimant held and/or manifested the protected belief, and (2) the case where the reason was that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it was the objectionable manifestation of the belief, and not the belief itself, which was treated as the reason for the act complained of. Of course, if the consequences were not such as to justify the act complained of, they could not sensibly be treated as separate from an objection to the belief itself. The distinction had been referred to in the Employment Appeal Tribunal cases as being between the manifestation of the religion or belief and the “inappropriate manner” of its manifestation. That was an acceptable shorthand, as long as it was understood that the word “manner” was not limited to things like intemperate or offensive language. The tribunal had applied that distinction in the present case. The authority took disciplinary action against the claimant not because he was a Christian or because he held the traditional family belief but because he expressed the latter belief (and his other views about homosexuality) in the national media in circumstances which, on the tribunal’s findings, justified the action taken. So far as the court was aware the distinction applied by the tribunal had not been endorsed in the Court of Appeal, but it was plainly correct. It conformed to the orthodox analysis whereby the “mental processes” which caused the authority to act did not involve the belief but only its objectionable manifestation ( paras 67, 68–69,72, 74).

As to indirect discrimination the tribunal’s conclusion on justification in relation to article 9 would be read over to the indirect discrimination claim (paras 89, 91, 99,102,103).

Per curiam. One point of some general significance was the type of evidence that should be required to establish group disadvantage in a case of the present kind. The court rather baulked at the idea that elaborate evidence should be required to establish that more Christians than non-Christians held the beliefs which the claimant expressed in his interview, but the court did not believe that it could be left altogether to judicial notice ( para 90).