Page v Lord Chancellor & Anor

It is important to emphasise that we are on this appeal concerned only with the

I start with the applicable statutory provisions. Section 27 of the Equality Act defines victimisation. So far as relevant for our purposes it reads:

“(1)

A person (A) victimises another person (B) if A subjects B to a detriment because —

(a)

B does a protected act, or

(b)

…

(2)

Each of the following is a protected act —

(a)-(c) …

(d)

making an allegation (whether or not express) that A or another person has contravened this Act.

(3)-(5) …”

Section 50 (9) (c) and (d) makes it unlawful for a “relevant person” to victimise the holder of a public office by terminating their appointment or subjecting them to any other detriment. “Relevant person” is defined in section 52, but I need not set out the definitions since it is common ground that the Respondents are “relevant persons” in this case.

The issue for the ET accordingly was whether the Respondents subjected the Appellant to the detriment complained of “because” he had done a protected act (namely, here, made an allegation of discrimination against them). There is a good deal of case-law about the effect of the term “because” (and the terminology of the pre-2010 legislation, which referred to “grounds” or “reason” but which connotes the same test): that terminology is used not only in the definition of victimisation but also in the definition of (direct) discrimination. What it refers to is “the reason why” the putative discriminator or victimiser acted in the way complained of, which in a case of the present kind involves an inquiry into their “mental processes”: see the line of cases which begins with the speech of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501 and includes the reasoning of the majority in the Supreme Court in R (E) v Governing Body of the JFS (“the Jewish Free School case”) [2009] UKSC 15, [2010] 2 AC 728, and the decision of the EAT (myself presiding) in Amnesty International v Ahmed [2009] UKEAT 0447/08, [2009] ICR 1450 (which I mention only because it is relied on by Mr Diamond). The doing of the protected act does not have to be the sole or even the principal cause: it is enough if it was a significant part of the respondent’s reason for doing the act complained of.

I should also note in this connection a related line of authority, usually regarded as beginning with the decision of the EAT in Martin v Devonshires Solicitors [2010] UKEAT 0086/10, [2011] ICR 352. This is to the effect that, where an employer takes action against an employee in response to a complaint of discrimination, they are not to be treated as acting “because of” that complaint if the true reason for the action is not the fact that the employee has complained but some other genuinely separable feature of the complaint (such as the manner in which it is made). The Tribunal summarised the effect of Martin at para. 100 of the Reasons: I come back to it in more detail below. 32. In his ET1 the Appellant formulated his victimisation claim as follows (see para. 45A):

“The comments made by Mr Page which the Respondent considered to ‘bring Magistracy into disrepute [sic]’ amounted to an allegation that Mr Page was discriminated against and/or harassed in breach of the Equality Act 2010 ... Making those comments was therefore a ‘protected act’ under s. 27 (2) (d) of the Act ... The consequent disciplinary proceedings and/or the sanction against Mr Page (removal from the Magistracy) were therefore victimisation in breach of s. 27 (1) of the 2010 Act.”

The pleading does not refer to section 50, as it should have done; but the disciplinary proceedings would constitute a detriment under subsection (9) (c) and the Appellant’s removal would fall within subsection (9) (d).

That formulation was amplified in the agreed list of issues which was before the Tribunal. In particular, the protected act was said to be the “broadcast words” which I have set out at para. 21 above. Although, as will be apparent, those words do not in fact allege any breach of the Act, it was said that, understood in their context, “[they] amounted to, and/or were perceived as, an allegation of religious discrimination and/or harassment”. Neither the pleading nor the list of issues says, as they should have done, what the alleged discrimination or harassment consisted of, but the reference is evidently to the first round of disciplinary proceedings culminating in the reprimand of 19 December 2014.

In short, therefore, there were potentially two issues for the Tribunal –

The Tribunal dealt with the victimisation claim at paras. 139-146 of its Reasons. I take in turn its treatment of the issues identified above.

THE PROTECTED ACT

The Tribunal began by accepting a submission by Mr Purchase that the Appellant’s case as stated in the list of issues was bound to fail, because the broadcast words were incapable of constituting a protected act: they were simply a statement of why the Appellant had done what he did, and they did not, even implicitly, constitute an allegation by him that the Respondents (or anyone else) were guilty of religious discrimination or harassment. That is obviously correct.

However, the Tribunal decided – not, as it said, without hesitation – to permit Mr Diamond to depart from the formulation in the pleaded issues and to rely instead on what he said was the effect of the broadcast as a whole, and specifically the reporter’s statements which preceded and followed the broadcast words (see para. 21 above). It concluded that the broadcast as a whole could be taken to indicate “that the Claimant said he had been disciplined because of his religious views as a Christian”; and it said, clearly rightly, that such a statement would amount to a protected act. I agree that the Tribunal was right to take that course, but I have to say that it was very unsatisfactory that the Appellant’s case was so poorly expressed in the list of issues. A list of issues is a crucial working tool in any complex discrimination claim, and parties should take care to formulate their cases accurately in it.

THE REASON WHY

The Tribunal’s finding as to the Respondents’ reason for removing the Appellant is at para. 144. This reads:

“As we have indicated when addressing the direct discrimination allegation, the Respondents and the Conduct Panel and the Disciplinary Panel made the decision to remove the Claimant because he chose to advertise the bias he would apply in the exercise of his judicial functions via the BBC: [130] and [135] above. The Claimant’s broadcast statement in that respect was not a protected act and they did not act because of any protected act, but for the reasons they gave contemporaneously.”

In short, it held that its earlier findings as to the Respondents’ reasons for removing the Appellant (and those of the two Panels for recommending removal) in the context of the discrimination and harassment claims also applied to the claim for victimisation. I should therefore set out the passages to which it refers.

Para. 130 reads:

“The Tribunal has already indicated it accepted that the removal decision was made for the reasons given by the Conduct Panel, the Disciplinary Panel and the Respondents: [67], [71]-[72], [75] and [76] above. The Tribunal was quite satisfied that the evidence established that the Respondents’ decision was based on the Claimant publicising on BBC television that his starting point or presumption as a Magistrate was that adoption by same-sex couples was inherently less good for a child than adoption by a father and a mother, irrespective of the evidence in the particular case; and, in turn, that this was a breach of his judicial oath and declaration and was such as to give rise to a perception in reasonable people that he would apply a preconceived and biased view, incompatible with the actions of a judicial office holder. It was made clear that, by contrast, his religion was not in point, nor was the fact that he held certain beliefs: [55], [67], [71], [72] above.” And para. 135 reads (so far as material):

“Applying the distinction identified and discussed at [84]-[94] above (Footnote: ⁵), the Tribunal concluded that the finding of misconduct and the decision to remove the Claimant were based on his inappropriate conduct in publicly displaying a preconceived bias towards same-sex adopters in relation to his judicial role, contrary to the declaration and oath and likely to bring the judiciary into disrepute and thereafter showing no

insight or remorse or willingness to accept that his conduct was inappropriate for a judicial office holder.”

In short, therefore, the claim failed because the Respondents’ reason for removing the Appellant was solely that he had made it clear that in the context of adoption he was not prepared to discharge his functions as a magistrate according to the law and the evidence (and had not acknowledged that his stance was mistaken). It was accordingly not because he had complained about having been discriminatorily disciplined.

At paras. 145-146 the Tribunal went on to address a particular point made by Mr

THE CONVENTION

In the list of issues the Appellant said that he proposed to contend that his removal from office constituted an interference with his right to freedom of thought, conscience and religion under article 9 of the Convention and/or his right to freedom of expression under article 10. It was originally his contention that the ET had jurisdiction to give a remedy for such a breach as a free-standing claim, but para. 101 of its Reasons records that Mr Diamond conceded that that was not the case. That is plainly correct: see Mba v London Borough of Merton [2013] EWCA Civ 1562, [2014] ICR 357, per Elias LJ at para. 35. But of course, as the Tribunal noted at para. 102, it was obliged by section 3 of the 1998 Act to interpret the relevant provisions of the 2010 Act, so far as possible, in such a way as to avoid such a breach. Accordingly, if the Appellant was able to show that his removal did constitute a breach of his Convention rights that could form the basis of a submission that section 27 of the 2010 Act should be given a meaning which it might not otherwise bear.

Since we are now concerned only with victimisation, only article 10 is directly applicable. That reads:

“1.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

At para. 109 of its Reasons the ET recorded that

“[t]he Respondents submitted that article 10 was not engaged as the reasons for the Claimant’s removal related to suitability to hold public office, rather than his freedom of expression, since there was no principled objection to the Claimant speaking to the media, but the central issue was whether what he said demonstrated judicial bias making him unfit to continue to hold office”.

It noted that Mr Purchase sought to support the distinction inherent in that submission by reference to para. 79 of the judgment of the European Court of Human Rights (“the ECtHR”) in Kudeshkina v Russia 29492/05, [2009] ECHR 360. However, it said that it was not satisfied that that passage drew a sharp distinction of the kind relied on, and it said that it would proceed, though without positively deciding the point, on the basis that article 10 (1) was indeed engaged. Accordingly the focus was on justification.

As to justification, the Respondents contended, in short, that any interference with the Appellant’s freedom of expression was, in accordance with the final words of article 10

The grounds on which the Appellant was permitted in the EAT to challenge the ET’s decision on victimisation were pleaded as follows:

“In considering the issue of the ‘severability’ of parts of the protected acts as defined in section 27 of the Equality Act 2010, and required by Martin v Devonshire [2011] the Tribunal failed:

a.

to analyse fully why the protected act was severable

b.

misapplied Martin v Devonshire

c.

failed to correctly apply Article 10 of the ECHR (to make a public statement) as required by s.3 of the HRA 1998.”

Without intending any disrespect to the EAT, I do not propose to set out its reasoning on those grounds at this stage since it will be more convenient to refer to it (so far as necessary) when considering the grounds of appeal before us.

The grounds of appeal, pleaded by Mr Diamond, are under five heads. I take them in turn.

The broad ground here is that the ET wrongly identified the protected act on which the Appellant relied and that the EAT wrongly accepted its analysis. It will be noted that the permitted grounds of appeal to the EAT did not include any such challenge to the ET’s reasoning, but the point seems nevertheless to have been argued in the EAT without objection and I would not therefore exclude it on that account.

The essential point pleaded is that “the analysis should depend on the evidence of what exactly the claimant told the media (not what was eventually broadcast)” (see para. 1 (b) of the grounds) and that:

“… the protected act (making an allegation that the respondents discriminated against the claimant because of his religious beliefs) includes his stating (to substantiate that allegation) what his religious beliefs were (that it was in the best interests of a child to be brought up by a mother and a father)” (see para. 1 (c)).

In so far as the Appellant’s point is that in considering whether he had done a protected act it was legitimate to look beyond the broadcast words, I agree. But that is exactly what the ET did. As explained above, it was in fact Mr Diamond who (initially) sought to rely only on the broadcast words. The Tribunal did not accept that those words alone could constitute a protected act, but it permitted him by way of alternative to define the protected act in a way that went beyond them and to treat the effect of the interview as a whole as being “that the Claimant said he had been disciplined because of his religious views as a Christian”. I do not therefore see how it can be criticised in the way that ground 1 appears to do.

We sought to explore with Mr Diamond in his oral submissions what other point this ground might be intended to make that might undermine the ET’s dismissal of the victimisation claim, but he was unable to elucidate what the challenge was. He appeared, at least at one point, to be seeking to revive the submission which the Tribunal rejected, namely that (in accordance with the list of issues) the broadcast words were themselves a protected act, irrespective of anything else in the broadcast, because they stated the relevant religious belief; and he appears to have advanced the same argument

This ground is directed to the ET’s application of the decision in Martin v Devonshires Solicitors: see para. 41 above. What is pleaded is that:

“The EAT has erred in its analysis of ‘severability’ of particular aspects of the protected act under Martin v Devonshires Solicitors”.

Although the reference is to the EAT, the real challenge has of course to be to the reasoning of the ET. The pleading uses the term “severability”. As I say below, that term does not appear in Martin and is not an apt way of expressing the principle which it establishes.

I should start by saying something more about what the EAT decided in Martin. The claimant, who was employed by a firm of solicitors, was mentally unwell. She made a series of false allegations of sex and disability discrimination against partners in the firm. She was unwilling to accept that the allegations were untrue, and there was medical advice that her behaviour, which was highly disruptive, was likely to continue. The employers dismissed her. The ET dismissed her claim of victimisation notwithstanding that, in one sense, her dismissal had been because of the complaints which she made. I gave the judgment of the EAT. At para. 19 I summarised the ET’s reasoning as follows:

“It acknowledged … that the fact that [the Appellant] had made complaints of sex and disability discrimination … formed part of the facts relied on by the Respondents in deciding to dismiss her. But it did not believe that it followed that that was part of the Respondents’ ‘reason’ for dismissing her in the sense required by the authorities … . Rather, what the Tribunal sought to determine was what it was about the Appellant’s conduct, including the making of those complaints, which motivated the Respondents to dismiss her; and it was that which it treated as their ‘reason’ in the relevant sense. Following that approach it found that the reason had nothing to do with the fact, as such, that the Appellant had made complaints of discrimination, but rather with the facts that those complaints involved false allegations of considerable seriousness, that they were repeated and that the Appellant refused to accept that they were false; the relevance of those facts being, taken together, that they led to the conclusion that she had a mental illness which was likely to lead to unacceptably disruptive conduct in future. To put it another way, it found that the reason for the dismissal was that the Appellant was mentally ill and the management problems to which that gave rise; and that the significance of the complaints was as evidence of that fact.”

I upheld that distinction. At para. 22 I said:

“The question in any claim of victimisation is what was the ‘reason’ that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable [emphasis supplied].”

I went on to illustrate that proposition by reference to the example of an employee who is dismissed not because he or she made a complaint but because of the unreasonable or offensive manner in which they did so. I continued:

“Of course such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the antivictimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to ‘ordinary’ unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately made in some cases does not mean that it is wrong in principle.”

At para. 23 I said that tribunals “can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint”. I concluded, at para. 25:

“[T]he distinction made by the Tribunal in reaching its conclusion as to the Respondents’ reason for dismissing the Appellant ought as a matter of principle to be regarded as legitimate. The distinctions involved may appear subtle, but they are real; and they require to be recognised if the anti-victimisation provisions, important as they are, are to be confined to their proper effect and not to become an instrument of oppression. This is an area of law where, alas, the questions to be answered cannot always be straightforward – not so much because the law is complex as because of the complexities of legislating for the subtleties of human motivation.”

The essential point in that reasoning is encapsulated in the sentence which I have italicised in para. 22: dismissal (or any other detrimental act) in response to a complaint of discrimination does not constitute victimisation if the reason for it was not the complaint as such but some feature of it which can properly be treated as separable. Mr Diamond’s use of the terms “severance” or “severability” is not an apt paraphrase because it brings in unhelpful echoes of completely different areas of the law.

The principle recognised in Martin has since been applied in a number of decisions of the EAT, most notably Panayiotou v Kernaghan [2014] UKEAT 0436/13, [2014] IRLR 500. Although it has not so far been approved in this court, an analogous principle was applied in Morris v Metrolink RATP DEV Ltd [2018] EWCA Civ 1358, [2019] ICR 90, which was a case concerning dismissal for taking part in trade union activities: see paras. 19-21 of my judgment. For my part I believe that it is correct. In a case where it applies, the making of the complaint is the context in which the reason for dismissal (or other detriment) arises, but it is not the reason itself.

Mr Diamond did not seek to challenge the correctness of the decision in Martin, but he did draw our attention to the decision of the EAT in Woodhouse v West North West Homes Leeds Ltd [2013] UKEAT 0007/12, [2013] IRLR 773. In that case the respondent’s attempt to rely on Martin was rejected. At paras. 101-102 of his judgment Judge Hand QC expressed what he described as “a further note of caution”, saying that the circumstances in Martin were “exceptional” and that if it was followed indiscriminately where complainants acted in an irrational way it would undermine the protection provided by the anti-victimisation provisions. I agree with him that it is important that that should not occur; but I do not, with respect, believe that it is necessary to go beyond what I said in paras. 22 and 23 of my judgment Martin as quoted above. As I say there, employment tribunals can be trusted to recognise the circumstances in which the distinction there described can be properly applied, and I do not believe that it is useful to apply a requirement that those circumstances be exceptional: I note that Lewis J made the same point in Panayiotou (see para. 54 of his judgment).

The pleaded challenge to the ET’s reasoning is to its “analysis of ‘severability’ of particular aspects of the protected act”. The “particular aspects” are pleaded as: (a) that the Appellant made his allegations in the media rather than in “some other forum”; (b) that he failed to follow advice not to speak to the media; (c) that his allegations led to negative publicity; and (d) that his words implied a willingness to break the judicial oath.

The first point to note is that Martin was only relied on by the ET in connection with a single element in the Appellant’s complaint, namely Dr Taylor’s initial decision that his conduct should be referred to a Conduct Panel, and the “four aspects” pleaded under ground 2 relate specifically to things said by Dr Taylor (see para. 22 above). The issue is thus of very limited significance in the context of the claim overall: even if the Tribunal fell into error as regards this element, that would not impugn its rejection of the claim based on the Respondents’ ultimate decision to remove the Appellant (and the recommendations of the two Panels); and it must be debatable whether any substantial award could be made on the basis that there was a discriminatory element in the finding of a case to answer, given that the relevant misconduct was subsequently, and lawfully, found to be proved. However, it seemed from his oral submissions that Mr Diamond might be seeking to rely on ground 2 as impugning the ET’s reasoning on the entirety of the victimisation claim, and I have the impression that the EAT may have understood the submissions before it in the same way. As a matter of prudence I will address the “Martin issue” on that basis.

I start with the removal decision. Here we are not in Martin territory at all. This is not a case of the kind where the ostensible reason for the detriment complained of is that the claimant did a protected act but where the employer asserts that the real reason was some separable feature of that act. The Lord Chancellor’s letter, which the ET found to be a true reflection of the Respondents’ reasons for deciding to remove the Appellant, said nothing about the fact that he had complained of discrimination. Rather, the misconduct which the letter identified (see the first paragraph) consisted in what he had said about how he would perform his duties in the case of a same-sex adoption. It was of course open to the Appellant to try to show that that was not the real reason, or in any event not the only reason, and that the Respondents were motivated (consciously or subconsciously) by the fact that he had complained of being discriminated against. But the Tribunal found otherwise, and that is a finding of fact which Mr Diamond does not, as he confirmed in his oral submissions, seek to challenge, and which was in any event plainly open to it. I would in fact go further and say that it is the finding that I would have expected. It is easy to see why the Lord Chancellor and the Lord Chief Justice would regard it as unacceptable for a magistrate to state publicly on television that he had a bias against same-sex adoption, and it would be surprising if they attached any significant additional weight to the fact that the interview also contained an implicit complaint about their having previously disciplined him for manifesting that bias.

The same goes for the recommendations of the Conduct Panel and the Disciplinary Panel. The ET found in the case of both Panels that the reason for their recommendations had nothing to do with the fact that the Appellant had (at least implicitly) complained about his having been disciplined previously: see para. 67 of the Reasons, accepting Mr Baker’s account of the reasoning of the Conduct Panel, and para.

That leaves the complaint about Dr Taylor’s decision that there was a case to answer – which, as I have said, is in fact the only element in the claim to which ground 2 as pleaded relates. The ET’s findings about his reasons for that decision do require a rather more detailed analysis. As recorded at para. 65 of the Reasons, Dr Taylor in his witness statement gave three reasons, though the Tribunal does make some further findings about them. They were: (a) that the Appellant had failed to follow the advice which he had been given regarding contact with the media, (b) that this had led to negative publicity, involving criticism of the Respondents, which could bring the judiciary into disrepute, and (c) that he appeared to be in breach of his judicial oath. Those reasons are of course the last three of the four pleaded “particular aspects of the protected act” to which Mr Diamond argues that Martin was wrongly applied: see para. 58 above.

As so stated, Dr Taylor’s reasons do not clearly correspond to the two Panels’ reasons for recommending the Appellant’s removal or the Respondents’ reasons for accepting that recommendation. I think that this is probably because he was focusing not so much on the misconduct alleged against the Appellant as on why it merited re-referral to the Conduct Panel given that he had already been disciplined. However, whether that is so or not, I believe for the reasons given below that the ET was entitled to conclude that none of the three reasons means that Dr Taylor made his decision because the Appellant had (implicitly) complained of being discriminated against.

The position about (a) and (c) is straightforward. As for (a), the Appellant’s failure to follow the advice to discuss any proposed media contacts is clearly in principle a different matter from what he subsequently said to the BBC; and given the history in this case, where the Appellant had been given explicit advice about speaking to the press, the ET in this case was clearly entitled to regard this as genuinely a distinct cause for concern. As for (c), breach of his judicial oath is simply another way of characterising the Appellant’s substantive misconduct, i.e. his public statement that he would in cases of same-sex adoption be guided by his preconceptions rather than by the evidence: it has nothing to do with the fact that he also implicitly complained of having been discriminatorily disciplined.

The position about (b) is less straightforward, because the “criticism of the Respondents” to which it refers can only be his criticism of their previous conduct in (as he says, discriminatorily) reprimanding him. In most circumstances there could be no real distinction between objecting to a complaint of discrimination and objecting to the negative publicity that that complaint would generate. However, I do not think that that is a fair characterisation of the Tribunal’s findings in this case. Although the threefold analysis of Dr Taylor’s reasons derives from his own witness statement, categorisations of that kind can be over-neat, and it is necessary to read para. 65 of the Reasons as a whole and together with what the Tribunal says at para. 145. I understand its essential finding (as regards this aspect) to be that Dr Taylor was genuinely not motivated by the Appellant having made a complaint, or by his having done so publicly, but by what he perceived as potentially a deliberate attempt to put illegitimate pressure on the Respondents of a kind inappropriate to a judicial office-holder (Footnote: ⁶). In my view it was open to the Tribunal to regard that a separate reason for his action, and there is no basis for our interfering with that assessment.

I would accordingly dismiss ground 2. I believe that my reasoning broadly corresponds to that of the EAT at paras. 51-55 of the judgment of Choudhury P.

Ground 3 reads:

“The EAT has erroneously conflated the Respondents’ ‘reason’ for the detrimental treatment of the Claimant with their ‘motivation’ (EAT [50] et seq). The distinction between ‘reason’ and ‘motive’ is essential in discrimination law: see R (E) v JFS [2010] 2 AC 728; Amnesty International v Ahmed [2009] UKEAT 0447/08. A benign motive for detrimental treatment is no defence to a claim for direct discrimination or victimisation.”

Para. 50 of the EAT’s judgment, to which that pleading refers, is the conclusion of a section in which Choudhury P sets out passages from the decision of the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] ICR

There is nothing in this ground of appeal. In the first place, any error in the reasoning of the EAT is immaterial except to the extent that it reflects an error in the reasoning of the ET. No such error is pleaded, nor is one identified in the skeleton argument; and none was apparent from Mr Diamond’s oral submissions. In any event, however, para. 50 of the EAT’s judgment is wholly unexceptionable. As I say at para. 30 above, the law in this area is well understood following a series of cases including the two to which Mr Diamond specifically refers – Amnesty International and the Jewish Free School case. His objection is apparently to the EAT’s use of the word “motivation”, which he treats as identical to “motive”. It is indeed well established that, as he puts it, “a benign motive for detrimental treatment is no defence to a claim for direct discrimination or victimisation”: the locus classicus is the decision of the House of Lords in James v Eastleigh Borough Council [1990] UKHL 6, [1990] 2 AC 751. But the case-law also makes clear that in this context “motivation” may be used in a different sense from

“motive” and connotes the relevant “mental processes” of the alleged discriminator” (p. 511 A-B). I need only refer to two cases:

(1)

The first is, again, Martin v Devonshires. There was in that case a distinct issue relating to the nature of the causation inquiry involved in a victimisation claim. At para. 35 I said:

“It was well-established long before the decision in the JFS case that it is necessary to make a distinction between two kinds of ‘mental process’ (to use Lord Nicholls' phrase in Nagarajan - see at p. 884F)

- one of which may be relevant in considering the ‘grounds’ of, or reason for, an allegedly discriminatory act, and the other of which is not.”

I then quoted paras. 61-64 from the judgment of Lady Hale in the Jewish Free School case and continued, at para. 36:

“The distinction is real, but it has proved difficult to find an unambiguous way of expressing it. … At one point in Nagarajan Lord Nicholls described the mental processes which were, in the relevant sense, the reason why the putative discriminator acted in the way complained of as his ‘motivation’ (see p. 885 E-F). We adopted that term in [Amnesty International], explicitly contrasting it with ‘motive’: see para. 35 (p. 1470 E-F). Lord Clarke uses it in the same sense in his judgment in the JFS case: see paras. 137-8 and 145 (pp. 158-9). But we note that Lord Kerr uses ‘motivation’ as synonymous with ‘motive’ – see para. 116 (p. 155) – and Lord Mance uses it in what may be a different sense again at the end of para. 78 (p. 148). It is evident that the contrasting use of ‘motive’ and ‘motivation’ may not reliably convey the distinctions involved – though we must confess that we still find useful and will continue to employ it in this judgment. …”

(2)

The second case is CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439, [2015] ICR 1010. At para. 11 of my judgment I said:

“As regards direct discrimination, it is now well-established that a person may be less favourably treated ‘on the grounds of’ a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the ‘mental processes’ of the putative discriminator, whether consciously or unconsciously, to any significant extent: … The classic exposition of the second kind of direct discrimination is in the speech of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501, which was endorsed by the majority in the Supreme Court in the Jewish Free School case, [2009] UKSC 15, [2010] 2 AC 728. Terminology can be tricky in this area. At p. 512A Lord Nicholls uses the terminology of the discriminator being ‘motivated’ by the protected characteristic, and with some hesitation (because of the risk of confusion between ‘motivation’ and ‘motive’), I will for want of a satisfactory alternative sometimes do the same.”

As I acknowledge in both those cases, it is not ideal that two such similar words are used in such different senses, but the passages quoted are sufficient to show that the distinction is well-known to employment lawyers, and I am quite sure that when Choudhury P used the term “motivation” he did not mean “motive”.

As noted at para. 44 above, the ET assumed without deciding that the Appellant’s removal as a magistrate because of what he said in the BBC interview constituted an interference with his freedom of expression, with the result that the only issue was whether that interference was justified in the interests of maintaining the authority and impartiality of the judiciary.

As regards that issue, at paras. 111-113 of its Reasons the ET refers to four decisions of the ECtHR relating to the rights of members of the judiciary to speak publicly about matters relating to their role: Wille v Liechtenstein 28396/95 [1999] ECHR 107; Vajnai v Hungary 33629/06; Kudeshkina v Russia, to which I have already referred; and the decision of the Grand Chamber in Baka v Hungary 20261/12, [2016] ECHR 568, in which the earlier decisions are reviewed and the principles to be derived from them are stated. At para. 111 the Tribunal quotes three passages from a section in the judgment

At paras. 147-163 the ET discusses the application of those principles to the Appellant’s case. I need not summarise the details of its discussion. It concludes, at paras. 160162:

“160.

The key consideration is the articulation of principle contained in these authorities … . The ECtHR expressly recognised that whilst there may be circumstances in which judges have an Article 10 protected right to make public pronouncements, the same only extends to the making of moderate and proper statements and in particular it does not extend to the making of statements that compromise the office holder’s judicial impartiality. As we have already indicated, this was not the case with Mr Page’s public statements.

161.

We have also noted earlier that the fairness of the process involved may be relevant to proportionality: [111] above. In this instance we consider that our findings of fact show that the Claimant was afforded a very fair and transparent process, which enabled him to know the concerns raised, the material relied upon and afforded him multiple opportunities to give his response.

162.

Accordingly, in all the circumstances the Tribunal concluded that the finding of misconduct and the imposition of the sanction of removal from the Magistracy was plainly a proportionate limitation upon the Claimant’s right to freedom of expression … and as such would be regarded as necessary in a democratic society.”

It followed from that conclusion that there was no need to consider whether section 27 of the 2010 Act should be given some special construction in order to avoid a breach of the Appellant’s Convention rights.

Before the EAT Mr Diamond made various submissions based on the reasoning of the ECtHR in some of the authorities which preceded Baka, which I have identified at para. 72 above. The EAT considered and rejected those submissions at paras. 60-67 of its judgment and concluded at para. 68 that the ET “did not err in concluding that the Claimant's removal from the Magistracy was a proportionate limitation upon his right to freedom of expression and as such would be regarded as necessary in a democratic society for maintaining the authority or impartiality of the judiciary”.

The Respondents had in their Respondent’s Notice sought to rely on the contention, on which the ET had made no finding (see para. 44 above), that the Appellant’s removal did not engage article 10 in the first place. The EAT’s conclusion on the justification issue meant that that issue did not arise, but it nevertheless addressed it at paras. 69-72 of its judgment and upheld the Respondents’ contention. At para. 69 it referred to para. 79 of the judgment of the ECtHR in Kudeshkina, which emphasised that the applicant in that case had been debarred from holding public office because of the statements that she had made to the media rather than because her “eligibility for public service nor her professional ability to exercise judicial functions” had been called in question. It acknowledged that the ET had been unsure whether that involved a “sharply drawn” distinction, but it went on to refer to the decision of the ECtHR in Harabin v Slovakia, 58688/11, [2012] ECHR 1951, which concerned the removal of the President of the Supreme Court of Slovakia. Although the applicant had expressed some controversial opinions on constitutional issues the ECtHR found that his removal was not “exclusively or preponderantly prompted by those views” but rather by “the appraisal of his professional qualifications and personal qualities in the context of its activities and attitudes relating to State administration of the Supreme Court” – in short about his suitability for the role – and held that accordingly article 10 was not engaged. The EAT accepted Ms Ling’s submission that it was clear from those authorities “that where action is taken against a judicial office holder essentially for reasons relating to his ability to carry out the duties of the office, rather than for the expression of certain views, then art 10 is not engaged”. Applying that principle, it held, at para. 72:

“It was not the Claimant's views on same-sex adoption which either ‘exclusively or preponderantly’ prompted the Respondents to remove him, but the clear indication emerging from those views that he would not be impartial in any adoption decision where same-sex adopters were involved. In our view, the Respondents are correct to say that, in the circumstances of this case, Article 10 was not engaged at all.”

Ground 4 is based on the decision of this Court in R (Ngole) v University of Sheffield [2019] EWCA Civ 1127, which was handed down two weeks after the EAT’s judgment. Mr Diamond pleads that:

“The EAT’s analysis of the issues under Article 10 ECHR is in contradiction with the judgment of the Court of Appeal in Ngole … In particular:

(a)

In Ngole, the decision-maker considered that a student’s Facebook posts expressing his belief that homosexuality was sinful might bring the profession [the claimant was on a social work course] into disrepute because of the risk of public perception that Mr Ngole’s beliefs could cause him to discriminate against homosexuals if he qualified as a social worker. There is a parallel with this case, where the Claimant’s publicly stated views have been deemed to undermine his fitness for the office, give rise to a perception of bias, and bring the judiciary into disrepute.

(b)

The Court of Appeal has condemned the approach of the decisionmaker who ‘wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that “homosexuality is a sin”) does not necessarily connote that the person expressing such views will discriminate on such grounds’ (para. 5 (10). The same reasoning applies in this case, mutatis mutandis: the Claimant’s public statement was wrongly taken to mean that he would be biased as a Magistrate.

(c)

In the (overturned) High Court judgment in Ngole, like in this case, a substantive restriction on Article 10 rights was disguised as an issue of personal/professional fitness for the office. The Court of Appeal has rejected that approach in Ngole. This undermines the EAT’s crucial reasoning in this case.”

Those particulars were reproduced verbatim in his skeleton argument and were not developed in his oral submissions.

It is not necessary for the purpose of addressing this ground to summarise the facts or the reasoning in Ngole beyond what appears from the ground as pleaded. The point that Mr Diamond draws from it is that the fact that a person has expressed discriminatory views does not necessarily mean that they will allow those views to affect their professional conduct. But that has no application to the circumstances of the present case. We are not concerned here with a mere “public perception” or an incorrect assumption that the Appellant’s views about adoption by same-case couples would affect his conduct as a magistrate: the whole point is that he himself had said it would affect his conduct. I therefore see nothing in this ground.

Ground 5 pleads that the EAT erred in law both in upholding the ET’s decision on justification and in holding that there had been no interference with the Appellant’s article 10 rights. Those are distinct issues, and I take them in turn.

As regards justification, Mr Diamond submits that the facts of the present case are in essential respects indistinguishable from those in the Strasbourg decisions of Wille, Kudeshkina and Baka (see para. 72 above), in each of which the removal of a judge for publicly expressing controversial views on political or constitutional issues was held to be a breach of their rights under article 10. It is unnecessary for me to review the facts of those cases because it is clear that, contrary to Mr Diamond’s submission, there is indeed a fundamental distinction. The feature which the Respondents regarded as bringing the judiciary into disrepute, and justifying the Appellant’s removal, was his public statement that he would be biased in the execution of his judicial duties: see para. 27 above. There is no equivalent to that feature in any of the cases on which Mr Diamond relies, which are of an entirely different character. The ET was plainly entitled, indeed I would say right, to find that the making of such a statement compromised the Appellant’s judicial impartiality and accordingly that proportionate sanctions were justified in accordance with the principles summarised by the Grand Chamber in Baka: see in particular para. 164 of its judgment. The Appellant was speaking directly about “the exercise of [his] adjudicatory function” and he was, as the Grand Chamber puts it, “required to exercise maximum discretion” in order to preserve the appearance of impartiality.

Mr Diamond did not advance any distinct challenge to the proportionality of the Appellant’s removal, but I have no doubt that it was indeed proportionate. He had already been reprimanded for putting his own preconceptions before his duty to decide cases in accordance with the law and the evidence, and had undergone re-training. He had also disregarded the advice that he had received about the procedure to follow before speaking to the media.

Since I would therefore uphold the ET’s finding on justification, it is unnecessary to decide whether the EAT was right to conclude that article 10 was not engaged in the first place. In my view it is indeed clear from the Strasbourg authorities that that depends on whether the Appellant’s public statement of his views, rather than the views themselves, were the “preponderant” reason for his removal. Mr Diamond’s submission to the contrary was simply that the facts in Harabin were very different; but what matters is the principle which the Court enunciated. But it is rather less straightforward how that principle applies in the present case. The EAT evidently believed that the Respondents’ essential reason for removing the Appellant was that he would be biased in the performance of his judicial duties. I see the force of that, and no doubt a decision might have been taken on that basis and would have been justified.

Those are my reasons for concluding that this appeal should be dismissed. The multiplicity of points advanced by Mr Diamond which I have had to address may make the case look less straightforward than it truly is. The Appellant was removed as a magistrate because he declared publicly that in dealing with cases involving adoption by same-sex couples he would proceed not on the basis of the law or the evidence but on the basis of his own preconceived beliefs about such adoptions. He was not, which was the only issue on this appeal, removed because he had complained about the earlier disciplinary proceedings against him. The basis on which he was dismissed was entirely lawful and involved no breach of his human rights.

I agree that the appeal fails for the reasons given by Underhill V-P, and only add the following.

Our system of justice owes a great debt to those who, like the Appellant, give so much time and commitment when they sit as magistrates. The fact that the magistracy contains individuals with differing backgrounds and beliefs is one of its strengths. But once a private individual takes on a judicial role, he is subject to the same obligations as any other judge. In this case the Appellant is not a victim. He was not dismissed for complaining about his treatment but because he had shown himself incapable of honouring his undertaking, recorded at paragraph 8 above, to act as a magistrate in a way that was free from bias. His inability to see any harm in relying on “evidence” acquired outside the court hearing was rightly described by the Disciplinary Panel as “a remarkable lack of judgment” (see paragraph 24). His belief that he was entitled to insert his personal views on same-sex adoption into the performance of his judicial functions led to conduct at the adoption hearing on 2 July 2014 that has no place in the Family Court, for the reasons so clearly given by the Vice-President at paragraph 27. A child’s future is to be decided on the evidence before the court and in accordance with the law. In passing the Adoption and Children Act 2002, Parliament has decided that a child may be adopted by a couple or by a single person, regardless of sexual orientation and without hierarchy. It is not open to individual judges to superimpose their own beliefs, however sincerely held.

In a tendentious series of opening remarks, Mr Diamond baldly asserted that the Appellant had been “singled out because of his Christian belief”. His loyalty to his judicial oath had led him to give paramount consideration to the interests of the child as he saw them, but this had been twisted as if it was discrimination. There was nothing unlawful in the Appellant’s position but the Respondents had “got rid of a judge because he would not endorse the zeitgeist”. These submissions are a patent distortion of the facts. They demonstrate a profound misunderstanding of the responsibilities of a judge as a public servant and the fact that the Appellant continues to hold them is a further confirmation that his dismissal from the magistracy was both lawful and inevitable.

I agree with both judgments.

The appeal be dismissed.

The Appellants pay the Respondents’ costs of the appeal, summarily assessed in the sum of £13,660.80 plus VAT

Permission to appeal to the Supreme Court be refused