The EAT has held that a prison employee disciplined for quoting bible passages which caused offence in a prison chapel service did not suffer direct or indirect discrimination, and that the tribunal was correct in requiring evidence of group disadvantage in the indirect discrimination claim.
Mr Trayhorn was employed as a gardener at a prison which contained a large number of sex offenders. He was a Christian, and an ordained Pentecostal minister. In addition to his role as a gardener he volunteered at services in the prison chapel. In February 2014, the managing Chaplain received a complaint through the prison's LGBT co-ordinator that Mr Trayhorn had said, during a service, that marriage between homosexuals was wrong and "needed stopping". No formal disciplinary action was taken, but Mr Trayhorn was instructed not to preach at the chapel.
In May 2014, Mr Trayhorn was leading the singing when he shared verses from the bible from memory concerning drunkenness, sex outside of marriage, theft and homosexuality. Complaints were made and Mr Trayhorn was told that he could no longer volunteer at services. An investigation concluded that Mr Trayhorn had made homophobic statements and that there was a disciplinary case to answer. Mr Trayhorn was told that he would be invited to a disciplinary hearing, and that sanctions up to a final written warning might be imposed.
Mr Trayhorn was signed off with stress for three months, and then resigned saying that "The situation I find myself in now makes it impossible for me to continue to work…and I regard my situation as one of constructive dismissal because of the way that I have been treated." The prison proceeded with the disciplinary hearing, as Mr Trayhorn was still an employee, and he was told by letter that the Governor had found that he had made homophobic comments and he was given a one year final written warning. His internal appeal was not upheld.
Mr Trayhorn claimed that he had been directly and indirectly discriminated against on the grounds of his religion or belief. He alleged that the prison's Conduct and Disciplinary policy and its Equality policy put employees who were of the Christian faith or, more particularly, the Pentecostal denomination, at a particular disadvantage because they were more likely to quote or discuss parts of the Bible that some might find offensive, resulting in complaints and disciplinary action under the policies. He said that he had personally suffered this disadvantage. He also sought to rely on his rights under Articles 9 and 10 of the European Convention on Human Rights to freedom of religion and freedom of expression in bringing his claims.
Mr Trayhorn also said that there was an unwritten practice that discussion of homosexual practices and any expression of a Christian view of sexual ethics cannot be mentioned or explained in prison. He said that Christians of the Pentecostal denomination are more likely to make such comments, and that he was disadvantaged by this unwritten practice when he was barred from volunteering at chapel services. The tribunal held that no evidence had been put before it about this alleged practice and therefore that Mr Trayhorn had not established that it existed.
The tribunal rejected his complaints finding he had not been directly discriminated "because of" his beliefs but he had been disciplined because he had explained bible verses without the prison's permission. The tribunal also found that Mr Trayhorn had not produced any evidence that the policies created either individual or group disadvantage which were required for a successful indirect discrimination claim. The tribunal pointed out that members of other religions and of no religions hold firm views on homosexuality. The tribunal held that there was no evidence that the provisions of the policies served to disadvantage Christians or Pentecostals as a group, and it observed that it had not been taken to any part of the policies which put either Mr Trayhorn as an individual or Christians or Pentecostals at a disadvantage singly or as a group.
The tribunal also held that, even if Mr Trayhorn had shown group or individual disadvantage, application of the policies was a proportionate means of achieving the wholly legitimate aims of maintaining security and order of the prison. This was based in part on evidence that derogatory remarks regarding any specific group within the prison could be seen to legitimise misbehaviour towards people in that group.
Mr Trayhorn appealed to the EAT, arguing that the tribunal should not have considered whether the policies had led to any group disadvantage. He referred to a Court of Appeal decision about the interplay between European legislation guaranteeing individuals the right to freedom of thought, and religion, including the manifestation of their religion or belief, which does not contain any requirement to show group disadvantage. The EAT rejected this argument, saying that it was clear from the Court of Appeal case that the definition of indirect discrimination cannot be read in such as way as ignores the need to establish group disadvantage, irrespective of the European legislation. While it is not necessary to show that a significant number of people are affected, some group disadvantage must be shown.
The EAT also found that the tribunal had not reached its decision on the basis of a failure to establish group disadvantage: it was not satisfied, on the facts before it, that either Mr Trayhorn, as a Christian, was disadvantaged by the policies or that other Christians, whether "singly or as a group", were disadvantaged.
What does this mean for employers?
This case makes it clear that claimants need to continue to establish group disadvantage in indirect religion or belief claims, despite the apparent incompatibility with European convention rights.
While the EAT found in this case that religious discrimination had not occurred, employers seeking to discipline employees for the way in which they are manifesting their religion or belief must always be cautious when doing so, and ensure that (when there is a risk that a PCP may have a greater effect on employees practicing a particular religion or belief) they can justify the practice or belief as being a proportionate means of achieving a legitimate aim.