REWARD INSIGHT
Discrimination, suspension, privacy
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decision in three cases
Trayhorn v The Secretary of State for Justice Employees are protected against less favourable treatment from manifesting their religious belief under the Equality Act 2010. The employment appeal tribunal (EAT) has determined that an employer did not discriminate against an employee when taking disciplinary action for the way the Christian and an ordained minister who was employed as a gardener at HM Prison Littlehey. He voluntarily took part in services at the prison chapel. The prison was made up of inmates containing a large number of sex offenders and young offenders. In February 2014, the claimant spoke during a service about homosexuals and the employer received a complaint about these comments. No formal disciplinary action was taken but the claimant was informed in April 2014 that he should not preach in future services. He was allowed, however, to continue leading the sung part of the service. In May 2014, the claimant made references to Bible verses about drunkenness, sex outside of marriage, theft and homosexuality during a service. These verses were not placed in any context by the claimant and he told the service employee manifested their belief. The claimant was a Pentecostal
to make complaints if they wanted to. A complaint was received in June 2014 and the claimant was told not to take any part in chapel services until further notice. ...a result of the insensitive way the Bible verses had been delivered... The claimant was invited to a disciplinary hearing in August 2014 for unprofessional conduct on account of making a homophobic statement. He was advised that the possible outcomes were informal action through to a final written warning. The claimant went off work sick and, although the employer reassured him he would not be dismissed as a result of the disciplinary action, he resigned in November 2014 claiming constructive dismissal for his treatment. During his notice period, the claimant was given a one-year final written warning for making homophobic statements during a service. The claimant made claims for direct and indirect discrimination on the grounds of religion or belief. He claimed direct discrimination took place as he was stopped from volunteering, was subject to
disciplinary procedures and had received a final written warning. In support of his indirect discrimination claim, he alleged 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 Bible quotations. They also could 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 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
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| Professional in Payroll, Pensions and Reward | November 2017 | Issue 35
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