In Trayhorn v The Secretary of State for Justice (Religion or Belief Discrimination)  UKEAT 0304/16/0108, Mr Trayhorn was a gardener/horticulturalist at HM Prison Littlehey, which houses a large number of sex offenders and young offenders. He has also been an ordained Pentecostal minister since 2009. At a Pentecostal service in the prison chapel on 31 May 2014, he spoke to a congregation of prisoners about homosexuality as sinful, quoting from 1 Corinthians 6: 9-11.
There had been a previous complaint by the LGBT coordinator in February 2014 about Mr Trayhorn’s comments during a service on 8 February 2014. No formal disciplinary action was taken at the time but, as a result, it emerged that he did not have the necessary counter-terrorism security clearance (CTC) required under the Chaplaincy Volunteer Risk Assessment Policy. Mr Trayhorn’s lack of CTC was reported to the Chaplain, the Revd David Kinder  and on 7 April 2014 he was told not to preach at services in the chapel in future . He persisted, however, and after a sermon on 31 May 2014 a prisoner complained to the Chaplain in the following terms:
“Whilst in the chapel Sat pm 31/5/14. During the service Barry the gardener instructor gave his sermon which included God hating prostitutes and gays.
As one of God’s soldiers and a follower of Jesus Christ I found this most offensive and regardless of my orientation he had no right to incite hatred towards anyone or judge anyone. The Bible provides forgiveness and acceptance of all as God’s followers. We should be promoting and not self-interpretation of a single person’s own thoughts and feelings and has also broken prison protocol over equality. This could have had severe consequences via bullying or self-harming.”
“The prison population should be assured this cannot happen again and that the prison does not support this person’s personal views” .
Complaints were also made by two other prisoners. There was a disciplinary hearing and he was given a one-year final written warning , against which he presented an appeal that was out of time . He was sacked on 1 December 2014 and brought an unsuccessful claim in an Employment Tribunal alleging indirect discrimination, relying on three Provisions, Criteria or Practices (PCPs):
- the application of the Prison Service’s Conduct and Disciplinary Policy, on which he contended that other prison employees who were of the Christian faith and/or of the Pentecostal denomination were likely to quote and/or discuss parts of the Bible which those attending chapel services might find offensive and complain about resulting in the Conduct and Discipline Policy being invoked – he was disadvantaged by this PCP as he was disciplined under the Policy for quoting and/or explaining a passage from the Bible ;
- the application of the Respondent’s Equality of Treatment for Employees Policy ; and
- the application of an unwritten practice that discussion of homosexual practices and any expression of a Christian view of sexual ethics could not be mentioned or explained in the prison: Mr Trayhorn alleged that Pentecostal Christians were more likely to make such comments and he was disadvantaged by this unwritten practice because he was barred from volunteering at chapel services for making such comments in the chapel service on 31 May 2014 .
He argued that his Convention rights under Article 9 (freedom of religion) and Article 10 (freedom of expression) had been infringed .
There were three grounds of appeal:
- that the ET had erred in holding that the treatment of which the Appellant had complained was not “because of” or “related” to “his religion or belief”, because the test was whether there existed a “sufficiently close and direct nexus between the act and the underlying belief”, citing paragraph  of Eweida & Ors v United Kingdom  ECHR 37 ;
- that the ET had erred in relying on group disadvantage as a necessary condition for Mr Trayhorn to establish indirect discrimination, counsel asserting that where Article 9 ECHR was engaged, proof of group disadvantage was not required ; and
- that the ET had failed to undertake “a proper balancing act” between Mr Trayhorn’s Article 9/Article 10 rights and the proposed limitation of those rights, particularly in the light of the principle of church independence 
Slade J dismissed the appeal. As to Ground 1:
“Employment Tribunals are required to apply the relevant statutory provisions to claims before them. For claims of direct discrimination brought under the Equality Act 2010 (EqA) s 13, s 13(1) requires them to decide whether the Respondent carried out the act complained of “because of a protected characteristic”. In a claim of harassment, EqA s 26 requires the Employment Tribunal to decide whether the Respondent engaged in unwanted conduct ‘related to’ a relevant protected characteristic. In both claims ‘because of’ and ‘related to’ is directed to the Respondent’s action of which complaint is made rather than to the relationship between a religious belief and the manifestation of that belief.
“The passage in Eweida relied upon in ground 1 does not relate to the connection between the act of the Respondent of which complaint is made and the protected characteristic” [41 & 42].
As to Ground 2, the ET had found as a fact that there was no evidence either of the unwritten policy asserted to be the third PCP or of the alleged “unwritten practice” . It had also found as a fact that no part of the Conduct and Disciplinary Policy or the Equality of Treatment of Employees Policy – the application of which was said to constitute the first and second PCPs – had been identified as putting either the Claimant as an individual or those of the Christian faith generally or Pentecostals specifically at a disadvantage and there was no appeal from those findings of fact . Though the ET had referred to “group disadvantage” in the context of s 19(2)(b), it had not reached its decision on that basis: on the facts, it had not been satisfied either that the Claimant was disadvantaged by the two PCPs as a Christian or that other Christians, whether “singly or as a group”, were disadvantaged .
As to Ground 3, the ET had considered whether the enforcement of the Prison Service’s Discipline and Equalities Policies had disproportionately restrained Mr Trayhorn’s manifestation of his religious belief. The ET had noted the evidence of another Pentecosal minister, the Revd Mr Nyandoro, that he recognised the sensitivity around equalities in an establishment such as HMP Littlehey and that he would have used the Bible text in a different way and put it into context. It had also noted that the Prison Chaplain had said that the Equality Policy did not prevent the effective and full operation of the Chaplaincy, which operated in a pastorally-sensitive manner. It was therefore apparent that the ET had weighed in the balance any restraint on the expression of Mr Trayhorn’s religious belief in holding that the Prison Service had established that the application of the Discipline and Equalities Policies in the circumstances had been a proportionate means of achieving a legitimate aim . Therefore, the ET had not erred in considering s 19(2)(d) read together with Article 9. It had reached its decision on unchallenged findings of fact [93 & 94].
In conclusion, from reading the EAT judgment it would appear that the reason why Mr Trayhorn was sacked was not so much that he had quoted 1 Cor. 6: 9-11 in a service in the prison chapel but because he had preached after he had been told that he was not to do so.