In Trayhorn v The Secretary of State for Justice Mr Trayhorn was a gardener working at Her Majesty’ s Prison Littlehey. He is a Pentecostal Christian minister and volunteered in prison chapel services. He expressed his views while preaching at a service that same-sex marriage was wrong. Following complaints, he was instructed not to preach at services. At another service around one month later, he felt “led to share” a passage from the Bible and made comments that prostitutes and gay people were not welcome in God’ s kingdom. He then “goaded” the congregation to make complaints against him. Further complaints were made. After disciplinary proceedings, Mr Trayhorn was given a final written warning. Mr Trayhorn went on sick leave and resigned.

He brought claims including indirect religious discrimination. He argued that the employer’s conduct policy and equality policy put Christians, and particularly Pentecostal Christians at a disadvantage because they are “likely to quote and/or discuss parts of the Bible which those attending chapel services may find offensive and complain about resulting in the Conduct and Discipline Policy being invoked”.

The tribunal dismissed his claim on the basis that he had not brought any evidence to show that the policies served to disadvantage Christians or Pentecostals as a group, or to disadvantage the claimant in particular.

The EAT agreed. It commented that members of other religions and no religions also hold firm views on homosexuality, the implication being that the conduct policy and equality policy would equally disadvantage those of no religion who were disciplined for expressing such views.

The EAT stated that a claimant must show that a group of people (even if only a small group) sharing his or her protected characteristic would be disadvantaged, compared to those not sharing the protected characteristic, in order to succeed with an indirect discrimination claim. It also confirmed that the requirement to show group disadvantage is not contrary to the right to freedom of religion under the ECHR.

It is interesting to note that the EAT also approved the tribunal’ s view that (if it had found the policies to be indirectly discriminatory) the employer would have been able to justify its decision to sanction Mr Trayhorn as a proportionate means of achieving a legitimate aim. The tribunal took into account that the make-up of the prison population required particular sensitivity on the subject of sexual morality and that the policies were designed to maintain security and order and to ensure equality of treatment within the prison.