Trayhorn v Secretary of State for Justice – disciplinary action was due to homophobic comments, not Christian beliefs

In the case of Trayhorn v Secretary of State for Justice UKEAT/0304/16/RN the Employment Appeal Tribunal upheld an Employment Tribunal’s ruling that there had been no religious discrimination against an employee who had been threatened with disciplinary action for quoting a passage from the Bible and “speaking about homosexuality as a sin” during a chapel service.

Summary

The Employment Appeal Tribunal upheld an Employment Tribunal’s decision that an employee had not been discriminated against or constructively dismissed when he had been given a final written warning by his employer, a prison service, for speaking about homosexuality as a sin and quoting from a passage in the bible – the EAT held that:

• In respect of the direct discrimination claims, the Tribunal had not made any error of law in finding that the Claimant had not been disciplined because of his religious beliefs but because of the manner and context in which he had expressed his views on homosexuality;
• In respect of the indirect discrimination claims, the Tribunal had not made any error of law in finding that, in respect of the first two allegations, the Claimant had not established any group disadvantage suffered and, in respect of the third allegation, the Claimant had not established a PCP

The facts in Trayhorn v Secretary of State for Justice

Mr Trayhorn was employed from 31 May 2011 as a gardener/horticulturalist at HM Prison Littlehey. There  is a chapel at the prison with three Christian Chaplains and one Muslim Chaplain, and provision is made for members of different faiths to attend services of worship. Lesbian, gay, bisexual and transgender (“LGBT”) inmates attended the services of worship and

Mr Trayhorn was ordained as a Pentecostal minister in 2009. The Pentecostal tradition of the Christian faith has a fundamentalist approach to the words of the Bible. From 2012 Mr Trayhorn volunteered in the prison chapel.

On 8 February 2014 Mr Trayhorn spoke as part of a service at the prison chapel, “preaching” to the worshipers.

On 10 February 2014 the Rev. Kinder, the managing chaplain, received a complaint regarding Mr Trayhorn’s comments at the service on 8 February 2014. The complaint alleged that Mr Trayhor had said as part of the service that certain things were “wrong” and that, in particular, marriage between “homosexuals” was wrong and “needed stopping”.

On 7 April 2014 Mr Trayhorn was told not to preach at services in chapel in the future as he did not have counter-terrorism security clearance, which was required under the prison’s policies. He was not subjected to disciplinary action at this time.

On 31 May 2014 Mr Trayhorn again read Bible verses relating to drunkenness, sex outside of marriage, theft and homosexuality. He finished the reading by saying to the worshipers: “You may want to complain about this but this is the word of God. God loves you and wants to forgive you.”

On 4 June 2014 a prisoner made a complaint about about Mr Trayhorn’s conduct on 31 May 2014; another prisoner complained shortly after that Mr Trayhorn had made homophobic statements on 31 May 2014. As a result of this complaint Rev Kinder told Mr Trayhorn not to take part in chapel services until further notice and an investigation was commenced by the prison management. On 17 July 2014 an agency gardener complained that Mr Trayhorn had been preaching to prisoners the previous day while they were on gardening duty.

On 26 August 2014 Mr Trayhorn was signed off work until 1 December 2014 for stress. In the meantime he was asked to attend a disciplinary hearing and was informed that the most serious sanction for his conduct may be a final written warning.

On 4 November 2014 Mr Trayhorn resigned from his employment, giving one months’ notice. As Mr Trayhorn was still employed by the prison the Governor proceeded with the disciplinary hearing and found that on 31 May 2014 Mr Trayhorn had made homophobic statements while leading worship. He was given a one-year final written warning.

Mr Trayhorn submitted claims to the Employment Tribunal for constructive unfair dismissal, harassment due to religious belief, direct religious belief discrimination, and indirect religious belief discrimination.

The Employment Tribunal dismissed Mr Trayhorn’s claims, holding that there had not been a repudiatory breach of Mr Trayhorn’s contract of employment by the Prison, that he had not been directly discriminated against (as he had been disciplined for the context and manner of the expression of his religious beliefs, rather than the religious beliefs themselves), and that he had not been subjected to indirect religious belief discrimination (as, in respect of two of the allegations Mr Trayhorn had not established any ‘group disadvantage suffered’ and, in respect of the third allegation, he had not established a proper PCP). In respect of the allegations of harassment, the Tribunal concluded that all of the acts alleged to constitute harassment were not in fact harassment.

Mr Trayhorn appealed against the Tribunal’s findings in respect of the direct and indirect discrimination claims as follows:

1. That the Tribunal had applied an incorrect causation test relating to the direct discrimination claims
2. That the Tribunal had applied the law incorrectly when determining whether there had been any group disadvantage for the purposes of the indirect discrimination claims
3. That the Tribunal had failed to properly balance Mr Trayhorn’s rights under the Human Rights Act 1996 (Article 9/Article 10 rights) and the proposed limitation of those rights in the light of the principle of church independence

The Employment Appeal Tribunal’s decision

The Employment Appeal Tribunal dismissed Mr Trayhorn’s appeal, holding that the Tribunal had correctly applied the law relating to Mr Trayhorn’s case.

Our solicitors’ comments

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case is another interesting example of a recently litany of cases where it was not necessarily the manifestation of the belief that led to the detriment (in this case the final written warning), but the manner and context within which the beliefs were espoused. However, employers should generally be careful to ensure that, should they sanction an employee for the manner in which the employee is espousing a religious belief in the workplace, careful guidance and warning is given to the relevant employee before any sanction is imposed – a failure to put in place such policies and guidance could potentially lead to a successful claim of discrimination.”