It is said that freedom of expression is crucial in a democracy but, in an employment context, should this fundamental right be qualified? As we discovered earlier this week, Google certainly seems to think so. Google invites all “Googlers” to challenge their training, workplace ideology, and whether programmes promoting workplace diversity are adequately open to all. An ill-advised memo expressing an opinion that “biological causes” explained the lack of women in tech industry leadership roles was clearly one opinion that went too far. Its author was dismissed.
In the recent decision of Trayhorn v The Secretary of State for Justice, it seems that the Employment Appeal Tribunal (EAT), fortunately for Google, shares a similar view. Mr Trayhorn was employed as a gardener/horticulturist at Littlehay prison which contains a large number of sex offenders and young offenders. Mr Trayhorn was also an ordained Pentecostal minister and provided voluntary help at the prison’s chapel services. He resigned after he was the subject of disciplinary proceedings following complaints received from attendees of a service where he had recited a passage from the Bible condemning, amongst other things, homosexuality.
Mr Trayhorn brought a claim for direct and indirect discrimination and harassment on grounds of his religious belief. He also claimed constructive unfair dismissal. He was unsuccessful before the employment tribunal in all claims and he appealed to the EAT on three grounds. In dismissing the appeal, the EAT held that the application of the respondent’s disciplinary and equality of treatment policy did not constitute indirect discrimination. Importantly, the EAT confirmed that, to bring a claim of indirect discrimination under the Equality Act, as well as proving that his actions were justified, he would also have to establish “a group disadvantage” (ie not just a disadvantage to himself). This is not a requirement under article 9 of the European Convention on Human Rights. However, whether under the European Convention or the Equality Act, it is clear from Trayhorn that employees do not have carte blanche to express potentially offensive opinions within a workplace without repercussion.