Trayhorn v The Secretary of State for Justice

For indirect discrimination under section 19(2)(b) of the Equality Act 2010, the claimant must show that the relevant provision, criterion or practice puts persons sharing the protected characteristic at a particular disadvantage. Article 9 does not permit that statutory threshold to be read down, although the threshold is not high and may be met where some persons sharing the claimant’s religion are disadvantaged.

Where a public authority restricts manifestation of religion, proportionality under section 19(2)(d) must be assessed compatibly with Article 9. A carefully limited restriction may be justified to maintain prison security, order and equality, particularly where it restrains insensitive delivery rather than religious belief or scripture itself.

A Pentecostal Christian employed at a prison appealed against the Employment Tribunal’s dismissal of his discrimination, harassment and constructive-dismissal claims. The claims arose after he spoke during a prison chapel service about homosexuality, quoted a biblical passage and encouraged complaints. Following prisoner complaints and an investigation, he was excluded from chapel volunteering and received a final written warning.

He alleged direct and indirect religion-or-belief discrimination. His indirect-discrimination claims relied on the application of disciplinary and equality policies and on an alleged unwritten practice preventing discussion of Christian sexual ethics. The central issues were whether section 19 required group disadvantage despite Article 9, and whether the policies’ application was a proportionate restriction on religious expression.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing the claims.

2. For direct discrimination under section 13 of the Equality Act 2010, the question is whether the respondent acted because of the protected characteristic. For harassment under section 26, it is whether unwanted conduct was related to it. The sufficiently close and direct nexus considered in Eweida concerns whether conduct is a manifestation of religion for Article 9 purposes; it is not the statutory causation test. The Tribunal correctly applied the statutory tests.

3. Section 19(2)(b) requires particular disadvantage to persons sharing the claimant’s protected characteristic. Applying Mba v Merton London Borough Council, that requirement cannot be ignored or read down because Article 9 itself protects an individual’s religious freedom without a group-disadvantage requirement. The threshold is nevertheless capable of being met if some persons sharing the claimant’s religion are disadvantaged; it is a factual question in each case.

4. The Tribunal did not decide solely by imposing an excessive group-disadvantage threshold. On unchallenged findings, it was not satisfied that either the claimant or other Christians or Pentecostals, singly or as a group, were disadvantaged by the disciplinary and equality policies. It also found no evidential basis for the alleged unwritten third PCP.

5. Article 9 was relevant to justification under section 19(2)(d) because the employer was a public authority. The Tribunal permissibly found that maintaining prison security, order and equal treatment were legitimate aims. It had weighed the claimant’s religious expression, the sensitivity of the prison setting, the risk to vulnerable prisoners, and evidence that the message could be delivered pastorally and in context. The restriction was limited to insensitive conduct in the prison and was proportionate.

• Employment Appeal Tribunal: Appeal dismissed: [2017] UKEAT 0304_16_0108.
• Employment Tribunal: By a judgment with reasons sent on 10 March 2016, the Tribunal dismissed all claims, including direct and indirect religion-or-belief discrimination.