Is it religious discrimination to discipline an employee who quotes Bible verses condemning homosexuality and speaks of repentance during a prison church service? The EAT had to answer this question in Trayhorn v The Secretary of State for Justice (UKEAT/0304/16/RN).
Mr Trayhorn was employed as a gardener at HM Prison Littlehey (the Prison). He was a Christian and an ordained minister. In addition to his gardener role, he volunteered at services in the chapel at the Prison.
A complaint was made in February 2014 that Mr Trayhorn had made comments during a chapel service that same-sex marriage was wrong. Shortly after that, the Prison instructed Mr Trayhorn not to preach at future services in the chapel but said that he could continue to lead singing.
Mr Trayhorn was leading the singing during a service in May 2014 and, during this time, shared verses from the Bible concerning sexual behaviour and repentance from sin and went on to preach on those verses. Further complaints were made and the Prison told Mr Trayhorn that he could no longer volunteer at services. A Prison investigation concluded that Mr Trayhorn had made homophobic comments. He was invited to a disciplinary hearing and was told that the possible outcome may be a final written warning. Shortly after that, Mr Trayhorn went on sick leave and later resigned.
Mr Trayhorn issued employment tribunal (ET) proceedings claiming direct and indirect discrimination, relying on the protected characteristic of religion or belief.
Indirect religion or belief discrimination occurs where:
- A applies to B a provision, criterion or practice (PCP)
- B has a particular religion or belief (or lack of religion or belief)
- A applies (or would apply) that PCP to persons not of the same religion or belief as B
- The PCP puts or would put persons of B's religion or belief (or lack of religion or belief) at a particular disadvantage when compared to other persons (known as "group disadvantage")
- The PCP puts or would put B at that disadvantage (known as "individual disadvantage")
- A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
Mr Trayhorn relied on PCPs that included the application of two policies (the Conduct and Disciplinary Policy, and the Equality of Treatment for Employees Policy) that the Prison said he had breached as a result of his comments on homosexuality. He alleged that these policies put employees who were of the Christian faith or, more particularly, of the Pentecostal denomination (as was Mr Trayhorn) 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 alleged that he had personally suffered this disadvantage.
Mr Trayhorn sought to rely on his rights under Articles 9 and 10 of the European Convention on Human Rights (the ECHR) to freedom of religion and freedom of expression in bringing his claims.
Employment tribunal decision
The ET rejected his complaints. It held that the direct discrimination claim failed because Mr Trayhorn's treatment was not "because of" his beliefs. It found that the Prison had not objected to him quoting from the Bible but rather that he had gone on to explain the verses without the Prison's authority to do so.
In relation to the indirect discrimination claim, the ET found that there was no evidence in support of either group or individual disadvantage.
The ET did not therefore need to make a finding in relation to justification. However, it went on to state that, if it had been necessary to do so, it would have found that the Prison's policies both:
- pursued a legitimate aim of retaining order and security, and protecting prisoners within the prison environment. The ET accepted that "derogatory remarks" regarding any specific group within the Prison (which held a large number of sexual offenders) could be seen to legitimise misbehaviour towards people within that group and, further, could lead to feelings of increased vulnerability amongst those groups who already suffered from low esteem
- were a proportionate means of achieving legitimate aims.
Mr Trayhorn appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal decision
The EAT dismissed the appeal.
Mr Trayhorn argued that the ET should not have considered whether the Prison's PCPs had led to any group disadvantage. In rejecting this argument, the EAT concluded that a group disadvantage must be shown for indirect discrimination to be established. This is despite the fact that Article 9 of the ECHR does not require group disadvantage. The EAT also held that there is no requirement to show that a significant number of people are affected.
In any event, the EAT found that the ET had not reached its decision on the basis of a failure to establish group disadvantage. It had decided that, on the facts before it, the two PCPs had not put Mr Trayhorn as an individual, or other Christians or those of the Pentecostal faith, whether “singly or as a group,” at a disadvantage.
The EAT also agreed with the ET's decision on justification.
This case is another example of an employee being disciplined not for manifesting his belief (which would be unlawful) but for the way in which he manifested it.
This decision confirms that, notwithstanding the potential incompatibility with Article 9 of the ECHR, claimants will continue to need to establish group disadvantage in indirect religion or belief discrimination cases.
Employers should, however, continue to tread very carefully when dealing with cases concerning religion or belief (particularly where those cases interact with other protected characteristics), as the distinction can be a difficult one to draw and a great deal often turns on the particular facts of each case.