No, held the Employment Appeals Tribunal (EAT) in Trayhorn v The Secretary of State for Justice.
The claimant was employed as a gardener/horticulturalist at HM Prison Littlehey, a prison with approximately 1,200 inmates, including sex offenders and young offenders. Within the prison, members of different faiths can attend services of worship. There are three Christian Chaplains, and one Muslim Chaplain in full-time employment. There is also a ‘real voices’ co-ordinator in the prison, who acts as an advocate for prisoners who identify as being lesbian, gay, bisexual or transgender.
The claimant was an ordained Pentecostal minister and had, from 2012, volunteered to help at services in the prison chapel. He spoke at a service in February 2014, saying that certain things were ‘wrong’ – in particular, marriage between ‘homosexuals’, which ‘needed stopping’. Complaints were raised about his comments, and he was instructed not to preach at services in the prison chapel in the future, although he could lead singing. In May 2014, while leading the sung part of the chapel service, he chose to elaborate on Bible verses dealing with matters relating to drunkenness, sex outside marriage, theft, and homosexuality, which he condemned.
Further complaints followed, and an investigation concluded that the claimant had made homophobic comments. He was invited to a disciplinary hearing, and informed that a potential outcome could be a final written warning. The claimant resigned prior to the conclusion of the disciplinary investigation, claiming constructive dismissal, and both direct and indirect discrimination, relying on the protected characteristic of religion or belief.
The claimant relied on three PCP’s (provisions, criteria, or practices) as the basis of his claims of indirect discrimination:
1. That Christian/Pentecostal employees were disadvantaged by the prison’s application of their disciplinary and equality of treatment policies. They were more likely to quote and/or discuss parts of the Bible which those attending chapel services might find offensive, and therefore complain about
2. That Christian/Pentecostal employees were disadvantaged by the prison’s Equality of Treatment for Employees Policy. They were more likely to make comments based on their beliefs, which could be in breach of that policy
3. That the application of an unwritten practice of not discussing homosexuality or any expression of a Christian view of sexual ethics disadvantaged Christians of the Pentecostal denomination, as they were more likely to make such comments.
The Employment Tribunal (ET) held that the claimant had not in fact been constructively dismissed, and neither had he been discriminated against.
The EAT upheld the ET’s decision. It was not satisfied that the claimant himself, or Christians as a group, were disadvantaged by the prison’s application of their disciplinary and equality policies, or the unwritten practice of not discussing homosexuality.
Furthermore, any restrictions placed on the expression of the claimant’s beliefs on homosexuality by the prison’s application of the Disciplinary and Equalities policy, achieved a legitimate aim of maintaining order and safety in the prison.
This case illustrates that employers can impose restrictions on employees expressing their views in relation to protected characteristics.
Employers can also discipline employees who express their views in relation to protected characteristics. There are, however, conditions. There must be a legitimate aim, and the method used must be proportionate to achieving that aim. In addition, claimants will continue to need to establish group disadvantage in indirect religion or belief discrimination cases.
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