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Establishing indirect discrimination

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Establishing indirect discrimination

Trayhorn v The Secretary of State for Justice

Mr Trayhorn worked as a gardener in a prison. He was also a Pentecostal minister and volunteered to help at services in the prison chapel.

While speaking as part of the service, he caused offence by suggesting that same-sex marriage was wrong and ‘needed stopping’. He was told that he couldn’t preach again. However, a few months later he made other references that led to complaints of homophobia. He was invited to a disciplinary meeting but went on sick leave, resigning before the disciplinary could run its course.

He went on to bring claims, including for indirect religious discrimination. And as part of that particular claim, an important question was asked at the Employment Appeal Tribunal: is it necessary to show group disadvantage in an indirect discrimination case? In other words, did Mr Trayhorn need to be able to show that the employer’s provision, criterion or practice (its conduct policy and equality policy which the employer said Mr Trayhorn had breached) put people of his religion at a particular disadvantage? It was argued that people of Mr Trayhorn’s religion or belief were more likely than others to refer to parts of the Bible that would lead to complaints and disciplinary action.

The tribunal had found that neither individual nor group disadvantage had been shown. And the EAT held that showing group disadvantage is a requirement of a successful indirect discrimination claim. ‘Group’ doesn’t mean all or most people of a particular religion. But there must be a sufficient number of people (to be determined on a case-by-case basis) affected, or potentially affected, by the provision, criterion or practice.

In any event, in this case, the employer’s policies would have been justified; they pursued a legitimate aim of retaining order and protecting prisoners, and were a proportionate means of achieving that aim.