Is it direct or indirect religious discrimination to discipline an employee who condemns homosexuality and speaks of repentance during a work church service? The Employment Appeal Tribunal (EAT) considered this question in the case of Trayhorn v Secretary of State for Justice.
Disciplinary hearing
The claimant was employed as a gardener and horticulturalist at HM Prison Littlehey. He was also an ordained Pentecostal minister, who helped at services in the prison chapel. During a service held on 31 May 2014, the claimant gave a sermon and referred to a passage from the Bible, which he indicated condemned homosexuality and prostitution.
The prison invited the claimant to a disciplinary hearing. He considered that he had been constructively dismissed and resigned with notice. The prison subsequently issued a final written warning to the claimant.
Indirect religious discrimination
The claimant brought claims for direct and indirect religious discrimination, harassment and constructive unfair dismissal. He said that employees of the Christian faith were more likely to discuss parts of the Bible that those attending services may find offensive, thus leading to Christian employees being more likely to be subject to disciplinary action. The claimant said this was indirect discrimination.
The Employment Tribunal could not find any evidence to support the claimant’s claim that the provisions of the prison’s policy were disadvantageous to Christians and Pentecostal church members. There was no evidence to show that the prison applied an unwritten practice of not discussing homosexuality and Christian ethics.
Further, the tribunal held that the application of the equality policies within the prison was a proportionate means of achieving the legitimate aim of retaining order and protecting prisoners within the prison environment, even if that meant that the claimant might be prevented from expressing his religious beliefs.
The tribunal held that the claimant’s treatment was not in relation to his faith but was directly linked to the fact that his comments were insensitive. The prison did not propose to discipline the claimant because he manifested his Christian belief but because he was damning a certain group of worshippers. The tribunal further held that the prison’s treatment of him did not fundamentally breach his contract of employment and he was not therefore entitled to resign and claim constructive dismissal.
The claimant appealed against the tribunal’s decision.
Employment Appeal Tribunal
The EAT held that it was not the manifestation of the claimant’s belief that caused the treatment but the way he communicated it, which went way beyond the religious texts.
In any event, the EAT supported the tribunal’s decision that the prison’s policies and practices could be justified as legitimate aims, which were to retain order and national security in a prison environment.
The appeal was dismissed.
What this means for employers
This case is a reminder of the careful balancing act employers must perform, where an employee’s expression of belief in the workplace has caused (or has the potential to cause) offence. However, the case confirms that disciplinary action may be justified, even if it risks offending the principles of freedom of speech or freedom to manifest religious beliefs. Each case will turn on its own facts.
These are delicate matters and we recommend obtaining legal advice before taking disciplinary action.
For more information on any of the issues raised in this article, please contact Kay Holland in the Bristol Employment Law team by emailing [email protected] or calling 0117 904 7720.
