EAT: Not religious discrimination to discipline employee for quoting Bible passages

Employees are protected against less favourable treatment from manifesting their religious belief under the Equality Act 2010 i.e. showing they hold a particular religious belief. The EAT have determined that it was not religious discrimination to discipline an employee because of the way they manifested their belief. In Trayhorn v The Secretary of State for Justice, the claimant was a Pentecostal Christian employed as a gardener at HM Prison Littlehey. He voluntarily took part in services at the Prison chapel and the employer received a complaint in February 2014 regarding comments he had made about homosexuals during a service. No formal action was taken, however, the claimant was told not to preach in future services. In June 2014, the employer received further complaints regarding a Bible quotation made by the claimant. The Bible verse related to drunkenness, sex outside of marriage, theft and homosexuality. The claimant was told not to take any part in chapel services until further notice and he was invited to a disciplinary hearing for making a homophobic statement. He was informed he would not be dismissed but the claimant resigned claiming constructive dismissal. During his notice period, he was awarded a one year final written warning for making homophobic statements. The claimant made claims for direct and indirect discrimination on the grounds of religion or belief, alleging the employer’s Disciplinary and Equality Policy put Pentecostal Christian employees at a particular disadvantage as they were more likely to quote Bible verses that are deemed to be offensive. The employment tribunal (ET) held direct discrimination had not taken place because disciplinary action was taken as a result of the insensitive way the Bible verses had been delivered, not because the claimant had made quotations. They could also not identify any part of the employer’s policies that put Christians or Pentecostals at a particular disadvantage nor placed the claimant at an individual disadvantage so the claim of indirect discrimination failed. In any case, the ET found the employer had a proportionate means of achieving a legitimate aim of maintaining security and order by ensuring equality of treatment, avoiding the perception of legitimising misbehaviour towards specific groups and reducing feelings of increased vulnerability. On appeal, the Employment Appeal Tribunal (EAT) agreed disciplinary action was not discriminatory as it was taken due to the manner and context in which the claimant expressed his view In addition, the ET was correct to find there was not a group disadvantage suffered by the application of the employer’s policies. What this means for employers:

• Employees’ rights to manifest their religion are protected against direct and indirect discrimination, harassment and victimisation under the Equality Act 2010
• This case confirms employers can lawfully draw a line between manifestation of a belief and the way in which the employee manifests it, however, this is a tricky area of law and this distinction may be difficult to draw
• To avoid cases of direct discrimination, employers should ensure they treat misconduct relating to the way an employee manifests their belief consistently, regardless of which religion the employee belongs to
• To avoid the risk of indirect discrimination, employers should apply their policies neutrally across all employees and all religions. This will ensure a group disadvantage is not suffered by a particular religion. Employers may also wish to document their legitimate aim within their equality policies, for example, the aim of ensuring equality of treatment amongst the workforce