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Is Evidence of Group Disadvantage Required to Prove Indirect Religious Discrimination?

on Friday, 11 August 2017.

In a recent case, the Employment Appeal Tribunal (EAT) considered whether an employment tribunal had erred in requiring evidence of group disadvantage in an indirect religious discrimination claim.

Trayhorn v The Secretary of State for Justice

Mr Trayhorn was employed as a gardener at HM Prison Littlehey. He was also a Pentecostal Christian and an ordained minister, which meant that in addition to his role as a gardener, he volunteered to take part in services at the prison chapel.

On a couple of occasions, whilst taking part in the services, Mr Trayhorn quoted certain sections of the Bible which he said condemned homosexuality. These comments resulted in a number of complaints made by certain prisoners and members of staff. Mr Trayhorn was subsequently told by his employer that he could no longer volunteer at chapel services and was invited to a disciplinary hearing. Shortly afterwards, he was signed off work with stress and later resigned.

Mr Trayhorn brought claims in the Employment Tribunal (ET) for direct and indirect discrimination, relying in particular on the protected characteristic of 'religion and belief' in support of his claims. He sought to prove that the application of two policies (a conduct policy and an equality policy) by the prison service amounted to a Provision, criterion or Practice (PCP) which put Christian (or more specifically, Pentecostal Christian) employees at a particular disadvantage. Mr Trayhorn argued that this was because a Pentecostal Christian would be more likely to quote or discuss parts of the Bible which others might find offensive, and that this would result in complaints and disciplinary action being taken against them under the policies.

The ET dismissed the claims and Mr Trayhorn appealed against that decision.

The Tribunals' Decision

Mr Trayhorn argued that the ET had erred in considering whether the PCPs adopted by the prison had led to any group disadvantage and that this was incompatible with his rights under Article 9 of the European Convention on Human Rights (EHCR) which protects freedom of thought, conscience and religion. The EAT dismissed the appeal.

The EAT concluded that in order to establish indirect discrimination, a group disadvantage must be shown and that this is a question of fact in each case. The EAT said that group disadvantage could be shown if some individuals of the claimant’s particular religion are disadvantaged by the relevant PCP - it is not necessary to show that a significant number of individuals within that particular group are affected.

Even so, the EAT found that the failure to establish group disadvantage had not impacted on the ET's decision. Rather, the ET came to the conclusion that neither Mr Trayhorn nor other Christians were put at a disadvantage by the conduct and equality policies applied by the employer.

Best Practice

  • This case serves as a useful reminder that claimants who bring indirect religious or belief discrimination claims against their employer will be required to establish group disadvantage under section 19 of the Equality Act 2010, even if this is potentially incompatible with their rights under Article 9 of the EHCR.

  • Just showing that they alone have suffered a disadvantage will not be enough - it will also be necessary to show that the relevant tenets of their personal belief are shared by others.

  • We advise employers to check the wording and scope of any policies carefully, to ensure that they do not place certain employees at a particular disadvantage compared with others, and that the policies are applied to everyone fairly.

For more information, please contact Mark Stevens in the Employment Law team on 0117 314 5401.

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