Religious Discrimination

September/October 2017

By Eliza Nash of Osborne & Wise

In Trayhorn V The Secretary of State for Justice, the Employment Appeal Tribunal decided that no discrimination occurred when a prison disciplined a prison chapel volunteer for quoting Bible passages that had caused offence to some people in the congregation.

Mr Trayhorn, a Pentecostal Christian, was employed as a gardener at a prison and volunteered in services in the chapel. He was disciplined for elaborating on a passage from Corinthians 6, which condemned homosexuality. A prison investigation had concluded that the quotes, taken in context, were homophobic. He resigned claiming constructive dismissal before a disciplinary was concluded which imposed a final written warning.

Mr Trayhorn brought claims for direct and indirect religion or belief discrimination as well as constructive dismissal. Indirect discrimination occurs where a provision, criterion or practice (PCP) is applied to everyone but puts persons of the claimant’s religion or belief at a particular disadvantage and put the individual claimant at that disadvantage. Mr Trayhorn alleged the application of two policies (a conduct policy and an equality policy), that the prison decided he had breached as a result of his comments on homosexuality, put employees who were of the Christian faith or, more particularly, of 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. Furthermore, he had personally suffered this disadvantage.

The EAT agreed with the tribunal’s finding that, on the facts, it was not satisfied either that Mr Trayhorn, as a Christian, was disadvantaged by the two PCPs or that other Christians, whether “singly or as a group,” were disadvantaged.

There has been some uncertainty to date as to the interplay between the concept of indirect religion or belief discrimination and the freedom of religion guaranteed by the European Convention of Human Rights (which does not require a claimant to show a group disadvantage). It follows from this finding 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.