Last week the Employment Appeal Tribunal (EAT) handed down judgment in Trayhorn -v- the Secretary of State for Justice UKEAT/0304/16. In this case, the EAT considered whether or not a Tribunal had made an error in requiring evidence of group disadvantage in a discrimination claim relating to religion or belief.
Indirect discrimination is defined under the Equality Act 2010 s.10(19). An example would be where an employer applies a policy that would put people of a religion or belief at a particular disadvantage, when compared to other employees. If that employer cannot justify the policy by showing that it has a proportionate means of achieving a legitimate aim, the policy will be considered indirect discrimination.
Under the European Convention of Human Rights there is the right of freedom of religion. Article 9 guarantees the right to freedom for conscience and religion, including the manifestation of that religion in worship, teaching practice or observance.
Trayhorn v Secretary of State for Justice
In this case, the complainant, Mr Trayhorn, was employed as a gardener at a prison. Mr Trayhorn was also a Pentecostal Christian and a Minister. As a part of his employment he was a volunteer within the prison chapel.
A complaint was made about Mr Trayhorn that he had made comments during a service at the chapel that same sex marriage was wrong. Following this, he was given an instruction by his employer not to preach at services in the prison chapel in the future. However, he was allowed to lead singing. Whilst doing so he shared a verse from the Bible, Corinthians 6:9 – 11 which states the following:
“Know ye not that the unrighteous shall not inherit the Kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor coveters, nor drunkards, nor revilers, nor extortioners, shall inherit the Kingdom of God. And such were some of you: but ye are washed, but ye are sanctified, but ye are justified in the name of the Lord Jesus, and by the Spirit of our God.”
After this, there were further complaints about Mr Trayhorn. He was then told that he could no longer be a volunteer within the chapel due to his dissemination of the quote from the bible. As part of a subsequent investigation, it was also considered that Mr Trayhorn had made comments of a discriminatory nature. A disciplinary hearing was called. However, shortly afterwards Mr Trayhorn went on sick leave and later resigned.
Mr Trayhorn pursued Employment Tribunal proceedings thereafter. He claimed both direct and indirect discrimination, relying on his “Protected Characteristic of Religion or Belief”. The provisions, criteria and practices which Mr Trayhorn said were discriminatory were a Conduct Policy and an Equality Policy. He said that the policies put people of his faith at a disadvantage because potentially they may be more likely to quote verses of the Bible which may be considered offensive by others. Therefore, Mr Trayhorn said that he had suffered a disadvantage.
The Tribunal rejected his complaints stating that he hadn’t produced any evidence that there was a group or individual disadvantage. However, even if Mr Trayhorn had put forward such evidence, the Tribunal said they would have found that the policies were a proportionate means of achieving a legitimate aim.
Unhappy with the result, Mr Trayhorn appealed.
The EAT upheld the tribunal’s decision that there had been no religious discrimination. It agreed that the tribunal had applied the correct test for direct discrimination and harassment.
The tribunal had considered whether there had been a group disadvantage and whether Mr Trayhorn had suffered an individual disadvantage as a result of the prison’s equality and disciplinary policies. The EAT considered that there was nothing in the policies that put Mr Trayhorn or others of a Christian faith at a disadvantage, either as an individual or as a group.
The EAT also upheld the decision in respect of justification; i.e. that the policy was a proportionate means of achieving legitimate aims.
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