Appeal No. UKEAT/0304/16/RN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 27 April 2017
	Judgment handed down on 1 August 2017

Before
THE HONOURABLE MRS JUSTICE SLADE DBE
(SITTING ALONE)

MR B TRAYHORN	APPELLANT

THE SECRETARY OF STATE FOR JUSTICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR PAUL DIAMOND
(of Counsel)
Pro Bono Scheme	
For the Respondent	MR MATHEW PURCHASE
(of Counsel)
Instructed by:
Government Legal Department
One Kemble Street
London
WC2B 4TS

SUMMARY
RELIGION OR BELIEF DISCRIMINATION

The Employment Tribunal did not err in dismissing claims that the application of the Respondent’s Disciplinary and Equality of Treatment Policies, the first and second Provisions, Criteria or Practices, to the Claimant, a Pentecostal Christian, for quoting in a service in a prison holding a large number of sex offenders a passage from the Bible condemning certain sexual behaviour and speaking of repentance did not constitute indirect religious discrimination.  The ET did not err in considering whether the first and second PCPs led to “any group disadvantage”.  Mba v Merton London Borough Council [2014] 1 WLR 1501 per Elias LJ paragraphs 33 and 35 applied.  In any event the ET were not satisfied either that the Claimant as a Christian was disadvantaged by the two PCPs or that other Christians whether “singly or as a group” were disadvantaged.  Eweida v United Kingdom [2013] IRLR 231 considered.

Further the ET did not err in holding that any restriction on the expression of the Claimant’s religious belief by the application of the Disciplinary and Equalities Policies was a proportionate means of achieving the legitimate aim of maintaining order and safety in the prison.

THE HONOURABLE MRS JUSTICE SLADE DBE

1.	The Claimant appeals from the Decision of an Employment Tribunal, Employment Judge Ord and members (“the ET”) who by a Judgment with Reasons sent to the parties on 10 March 2016 dismissed all his claims including those which are the subject of this appeal, those of direct and indirect discrimination on grounds of and related to religious belief.  The Claimant is a Pentecostal Christian.  The events which formed the basis of his complaints relevant to the amended grounds of appeal were his speaking about homosexuality as a sin and quoting from a passage of Corinthians Chapter 6 verses 9-11 at a Pentecostal service on 31 May 2014 to a congregation of prisoners at a prison housing a large number of sex offenders. 

Outline Relevant Facts
2.	The following outline is taken from findings of fact made by the ET.  These are not the subject of any of the grounds of appeal.

3.	The Claimant was employed by the Respondent from 31 May 2011 until 1 December 2014 as a gardener/horticulturalist at HM Prison Littlehey.  His employment was terminated on 1 December 2014 by notice given by him on 4 November 2014.  HMP Littlehey is a prison with approximately 1,200 inmates including sex offenders and young offenders.

4.	Within the prison there is provision made for members of different faiths to attend services of worship.  There are three Christian Chaplains and one Muslim Chaplain in full-time employment.

5.	The ET held:
“10.3. The Claimant has been an ordained Pentecostal minister since 2009.  The Pentecostal tradition of the Christian faith is one in which there is a fundamentalist approach to the words of the Bible.
10.4. From 2012 onwards the Claimant volunteered to help at services in the prison chapel. …”

6.	There is a “real voices” co-ordinator in the prison who acts, among other activities, as an advocate for prisoners who identify as being lesbian, gay, bisexual or transgender (“LBGBT”).

7.	On 8 February 2014 the Claimant spoke as part of a service in the prison chapel.  He says he would so speak when moved to do so by The Holy Spirit.

8.	On 10 February 2014 the Rev. Kinder, the managing Chaplain, received a complaint regarding the Claimant’s comments on 8 February 2014.  The complaint came through the LGBT co-ordinator.  The ET held:
“10.12. The complaint was that the Claimant had said, during a service, that certain things were “wrong” and in particular marriage between “homosexuals” (which we take to mean same sex marriage) was wrong and “needed stopping”.  Rev. Kinder reported this to Governor White who was at the time the line manager for Louise Edden, the Claimant’s then line manager.
10.13. No formal disciplinary action was taken at the time but at the same time it emerged that the Claimant did not have counter-terrorism security clearance (CTC).  Under the Chaplaincy Volunteer Risk Assessment Policy any staff of volunteers preaching in the Chaplaincy were required to have CTC.  The Claimant’s lack of CTC was reported to Rev. Kinder.”

9.	On 7 April 2014 the Claimant was told not to preach at services in the chapel in the future.

10.	The ET held:
“10.19. On 31st May 2014 the Claimant was leading the sung part of the service in the chapel.  The Claimant says in his words that he was “led to share, during worship, verses from the Bible and some thoughts about repentance from sin”.  He referred to quoting Bible verses which he did from memory; that before he did so he spoke about repentance.  The referenced Bible verses deal with matters relating to drunkenness, sex outside of marriage, theft and homosexuality.  They come from the first letter of St Paul to the Corinthians (chapter 6 versus 9-11).  Although the Claimant in his own evidence spoke both before and after quoting the Bible (and on his own evidence he did so from memory, not reading the text verbatim) it is appropriate to put in context the contents of that Bible passage.  The authorised King James’ version of the Bible records those verses thus:
“Know ye not that the unrighteous shall no inherit the Kingdom of God?  Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor coveters, nor drunkards, nor revilers, nor extortioners, shall inherit the Kingdom of God.  And such were some of you: but ye are washed, but ye are sanctified, but ye are justified in the name of the Lord Jesus, and by the spirit of our God.”
10.20. The Claimant’s own statement to which he has sworn confirmed that “After I had finished explaining the verses I said words to the effect of “You may want to complain about this but this is the word of God.  God loves you and wants to forgive you” ”.  On the day the Claimant made his remarks during the service no complaint was made to him at the time.  The Rev. Nyandoro was present at the service.
10.21. Shortly after the day of the service however complaints were made as follows:
(i) On 4th June 2014 the Rev. Kinder received a complaint from a prisoner PR2.  On the same day the Rev. Kinder spoke to the Claimant and told him that until further notice he was not to take part in chapel services.  The complaint was as follows:
“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 quality.  This could have had severe consequences via bullying or self harming.”
(ii) In answer to the question on the complaint form filled in by PR2, what they would like to see done about their complaint, PR2 answered this:
“The prison population should be assured this cannot happen again and that the prison does not support this person’s personal views.””

Complaints were made by two other prisoners:
“(vi) No formal action was taken against the Claimant as a result of the complaint brought by PR2.  However, the Rev. Kinder told the Claimant that he could no longer volunteer at services.
(vii) The complaint made by PR3 was passed to the Deputy Governor who appointed Mr Moore to conduct the investigation.”

The investigation was conducted by Mr Moore:
“(xii) Miss Edden confirmed the previous incident and the fact that the Claimant had been told he could not preach but could lead singing in a service.
…
(xiv) PR3 confirmed that the Claimant had stopped half way through a song and said that whilst he could not remember the exact words it was along the lines of the fact that all prostitutes will never be welcome in God’s Kingdom and prostitutes are not welcome here and homosexuals are not welcome here and will be never welcome in Heaven.  PR3 continued:
“The crazy thing was that he started goading the congregation.  He kind of just went crazy and he started raising his hand he started pointing at people and saying “Go on put your complaints in if you don’t like what I’m saying, put your complaints in” and I was … I almost felt like putting my guitar down at that point, yeah, but I felt that it would have let Roy down because Roy had guests with him an American lady and some other people, I thought I won’t make a scene because Roy, you know, is a really, really nice person.” 
Roy was confirmed as being the Rev. Nyandoro.
…
(xvi) Based on the evidence obtained during the investigations, Mr Moore was satisfied that during the service the Claimant had made homophobic statements.  He considered the matter warranted progression to a disciplinary hearing.”

11.	On 17 July 2014 an agency gardener complained that the Claimant had been preaching to prisoners the previous day when they were on gardening duty.

12.	On 26 August 2014 the Claimant went on sick leave.  He was signed off work until 1 December 2014 for stress.  He agreed to go to counselling.

13.	At paragraph 10.30 the ET held:
“10.30. The Claimant had been advised, in the meantime, by letter dated 7th August 2014 that he was required to attend a disciplinary hearing to be investigated for “unprofessional conduct - that on Saturday 31st May 2014 during a Pentecostal service whilst you were leading worship as a Chaplaincy volunteer you made homophobic statements”.  The Claimant was advised that he had the option to accept the allegations as true and have his case considered by the Fast Track process; that in any event the Claimant would be told of a date when the matter would be determined and was advised of the possible outcomes of the hearing which ranged between taking no further action, through taking informal action or taking formal action by giving a disciplinary warning up to and including a final written warning. …”

14.	On 23 October 2014 Mr Taylor the Governor, visited the Claimant at home with Miss Edden to discuss his return to work.  He was reassured that he could not be dismissed as a result of the disciplinary action he was facing and that the poor performance process would be a supportive one designed to help him improve his performance at work.

15.	On 4 November 2014 the Claimant resigned.  He wrote:
“The situation I find myself in now makes it impossible for me to continue to work at HMP Littlehey and I regard my situation as one of constructive dismissal because of the way that I have been treated.”

16.	On 6 November 2014 Mr Taylor proceeded with the disciplinary hearing as the Claimant was still an employee.  By letter dated 7 November 2014 the Claimant was informed that the Governor had found that on 31 May 2014 during a Pentecostal service whilst leading worship as a Chaplaincy volunteer the Claimant made homophobic statements.  He was given a one year final written warning.

17.	On 4 December 2014 the Claimant submitted an appeal.  Mr Smith wrote on 6 January 2015 saying he was satisfied that the disciplinary matter was dealt with fairly and reasonably.  The appeal was out of time.  He felt it unnecessary to conduct an appeal hearing.

The Judgment of the Employment Tribunal
18.	The ET identified the elements relevant to the claims.  Those relevant to the amended grounds of appeal are set out below.

19.	The ET recorded that the claims of direct discrimination made by the Claimant all related to three matters:
“12.1. …
(i) That he was stopped from volunteering in the prison chapel from 2nd June 2014 onwards;
(ii) That he was subject to disciplinary and/or performance investigations allegedly because of his religious activities and his alleged poor performance; and
(iii) That he received a final written warning on 6th November 2014; …”

20.	The Claimant relied upon three Provisions, Criteria or Practices (“PCP”) as the basis of his claims of indirect discrimination.  The first PCP was said to be the application of the Respondent’s Conduct and Disciplinary Policy (reference AI 05/2010, PSI 06/2010, reissue date 22/7/2013).  He contended that other employees of the Respondent 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 may find offensive and complain about resulting in the Conduct and Discipline Policy being invoked.  The Claimant was disadvantaged by this PCP as he was disciplined under the Policy for quoting and/or explaining a passage from the Bible.

21.	The second PCP was said to be the application of the Respondent’s Equality of Treatment for Employees Policy (reference AI 11/2010, PSI 22/2010, issue date 14/4/2011) in particular page 3 section 2.3.  The ET held at paragraph 4.4.1:
“4.4.1. The alleged disadvantage to persons with whom the Claimant shares the protected characteristic was said to be that other employees of the Respondent who are of the Christian faith and/or of the Pentecostal denomination of that faith are likely to make comments based on their beliefs which could be considered to be in breach of the Equality of Treatment for Employees Policy.  The Claimant was found to be in breach of the Equality of Treatment for Employees Policy because of the comments he had made during the chapel service on 31st May 2014.”

22.	The third PCP was said to be the application of an unwritten practice that discussion of homosexual practices and any expression of a Christian view of sexual ethics cannot be mentioned or explained in the prison.  It was alleged that Christians of the Pentecostal denomination are more likely to make such comments.  The Claimant alleged that he was disadvantaged by this unwritten practice as he was barred from volunteering at chapel services for making such comments in the chapel service on 31 May 2014.

23.	The Claimant also contended that the matters of which he complained infringed his rights under the European Convention of Human Rights Article 9, freedom of religion including manifestation of religion or belief and Article 10, the right to freedom of expression.

24.	So far as the claim of discrimination on grounds of religion or belief are concerned, the ET held at paragraph 17.2(vi) that:
“(vi) It is clear from his own evidence, however, that what the Claimant said on 31st May 2014 at the relevant service went far beyond a mere quotation of scripture.  In addition, we are reminded of the evidence of Rev. Kinder that it was important to both contextualise and approach with sensitivity within the Christian spirit of forgiveness the delivery of Christian message, particularly within the confines of the prison environment.  Both PR3 and the Rev. Nyandoro, in the evidence they gave to the investigation conducted by Mr Moore, confirmed that the Claimant’s comments went far beyond the quotation of Scripture - he was in his own words to that investigation “teaching and preaching”.
(vii) It is clear and we conclude that the difficulties which the Claimant experienced as a result of the service on 31st May 2014 were due to the lack of context, the lack of sensitivity of approach and the encouragement by the Claimant of the congregation to raise complaint about him.  We have not been taken to any part of the Conduct and Disciplinary Policy nor the Equality of Treatment for Employees Policy which is said to put neither the Claimant as an individual nor those of a Christian faith (or those of the Pentecostal denomination) at disadvantage, singly or as a group.  Professor Kay does not say that, the Claimant does not say that and it was not put to the Respondent’s witnesses that there was such an impact in relation to the Claimant or those defined groups.”

25.	Turning to the claims of indirect discrimination the ET observed in respect of the first PCP that:
“17.2(ii) … the Claimant did not produce any evidence in support of the contention of group disadvantage. …”

Members of other religions and no religions hold firm views on homosexuality.

26.	In any event the ET accepted that the correct first PCP was:
“17.2(iii) … a requirement of all employees to adhere to the relevant policies which are set out in the Equality of Treatment Policy and the [Ensuring] Equality Policy [the subject of the second PCP].”

There was no evidence that the provisions of those policies served to disadvantage Christians or Pentecostals as a group.  Further they observed that they were not taken to any part of the policies which put either the Claimant as an individual or those of a Christian faith or Pentecostals at a disadvantage singly or as a group.

27.	In respect of the third PCP alleged, the ET held at paragraph 17.3 that no evidence was put before them of an “unwritten practice that issues involving discussion of religion, moral condemnation of homosexual practice or any expression of Christian sexual ethics could not be mentioned or that views thereon could not be expressed in the workplace”.  Accordingly the ET held that the existence of the third PCP had not been established.

28.	In any event the ET found at paragraph 18.2 that, in the circumstances, had it been necessary for them to do so the ET would have found that the PCPs found were, in accordance with section 19(2)(d) of the Equality Act 2010 a proportionate means of achieving the wholly legitimate aims of maintaining security and order of the prison.  Further, at paragraph 18.5 the ET held:
“18.5. Insofar as it is necessary for us to do so, therefore, we find that the Respondent’s application of its Equalities Policies was a proportionate means of achieving the legitimate aim of retaining order and protecting prisoners within the prison environment.  Mr Diamond’s submission that the scope of those policies (and the Equality Act) “ended at the chapel door” is not accepted by us.  The Claimant was free to espouse his views outside the prison environment including, if he so wished, at public church services.  A limitation on his doing so (such limitation extending only to the application of what the Rev. Kinder called pastoral sensitivity) within the confines of the prison where special circumstances had to apply is a minimal interference with the manifestation or prosthelytizing of his religion or belief and only prevents the insensitive manifestation of that belief within the prison and its chapel.”

29.	The ET accordingly held that the claims of indirect discrimination on the ground of religion or belief were without foundation and failed.

30.	As for the reliance placed by the Claimant on his Article 9 rights the ET held applying the judgment of the Court of Appeal in Mba v Merton London Borough Council [2014] 1 WLR 1501 to their findings:
“19.5. … insofar as the Claimant has established that a PCP existed, the first PCP (as amended in accordance with the Respondent’s submissions) and the second PCP alleged, but not the third; the Claimant has not established group disadvantage.  It is a requirement of the domestic law and is not inconsistent with the Claimant’s Article 9 rights.  Further, the application of the Disciplinary and Equalities Policies within the Respondent is, we conclude, a proportionate means of achieving the legitimate aim of protecting order and security within the prisons and amongst the prisoners within the prison itself.”

31.	The ET set out in paragraph 20 the acts which were alleged to constitute harassment.  The ET held in paragraph 20.1.1 that the reason why the Claimant was stopped from volunteering within the Chaplaincy was that he was continuing to preach when he was not authorised to do so and contrary to a direct instruction issued on 9 April 2014.  As for the degree to which the message the Claimant gave on 31 May contributed to the decision, the Claimant had already been told by Rev. Nyandoro and Rev. Kinder that there had been previous complaints made by members of his congregation upset by his delivery.  The ET held at paragraph 20.1.3:
“20.1.3. That treatment, we find, was not related to the Claimant’s faith but to his insensitive delivery and the fact that he had (as he knew) no clearance and therefore no authority to preach and had been specifically told not to do so.”

32.	In summary, on the evidence before them the ET concluded that all the acts alleged to constitute harassment were not acts of harassment.

33.	The ET held that the Claimant’s employment was terminated by his resignation.  He was not constructively dismissed.

34.	The ET found that all the claims brought by the Claimant failed.

The Grounds of Appeal
References to the grounds of appeal are to those in the amended grounds of appeal.

Ground 1
35.	By ground 1 of the Notice of Appeal it is contended that the ET erred in holding that the treatment of which the Appellant complained was not “because of” or “related” to “his religion or belief”.  It is said that the test is whether there exists a “sufficiently close and direct nexus between the act and the underlying belief”, Eweida v United Kingdom [2013] IRLR 231 at paragraph 82.

36.	Mr Diamond, counsel for the Claimant, stated that he was not pursuing ground 1 but was not abandoning it.  Accordingly he did not make submissions on ground 1.  As the ground of appeal has not been abandoned it will be considered.

37.	Ground 1 refers to the judgment of the European Court of Human Rights (“ECHR”) in a group of three cases from the United Kingdom of which Eweida v United Kingdom [2013] IRLR 231 is one.  Ms Eweida brought proceedings against British Airways for indirect discrimination and a breach of her right to manifest her religion contrary to Article 9 of the ECHR.  She complained of the enforcement of a uniform code which prohibited the visible wearing of religious symbols.  She was prevented from wearing her cross visibly at work.

38.	The first ground of appeal asserts that the ET erred in dismissing the claims of direct discrimination by erroneously applying a causative test of the reason for the treatment complained of rather than considering, as stated in paragraph 82 of the judgment in Eweida, whether there was a sufficiently close nexus between the Respondent’s act and the Claimant’s underlying belief.

39.	Mr Purchase pointed out that ground 1 could be said to apply to the claims of harassment as well as direct discrimination.

40.	Counsel for the Respondent pointed out that the language used by the ET, “because of or related to” to which objection is taken in ground 1 is that used by the Employment Appeal Tribunal (“EAT”), HH Judge Eady QC, in Wasteney v East London NHS Foundation Trust [2016] ICR 643 at paragraph 55.  These were the correct tests for direct discrimination “because of” and harassment “related to”.  The ET acted correctly in applying these tests.  Mr Purchase referred to finding of fact that the Respondent did not object to the Claimant quoting from the Bible, a manifestation of his belief, but to the way in which he did so.  There is no appeal from this finding of fact in the Judgment of the ET in paragraph 13.11(i) and elsewhere.

Discussion and Conclusion
41.	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”) section 13, section 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 section 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.

42.	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.  Paragraph 82 of Eweida explains the means of identifying a “manifestation” of religion or belief within ECHR Article 9.  The Court held:
“82. … In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief.  An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form.  However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. …”

43.	Mr Diamond rightly did not pursue ground 1.  The ET did not err as asserted in that ground.  They correctly applied the relevant statutory provision.

44.	Ground 1 is dismissed

Ground 2
45.	Mr Diamond contended that the ET erred in relying on group disadvantage as a condition precedent for the Claimant to establish indirect discrimination.  Counsel asserted that where Article 9 of the ECHR is engaged proof of group disadvantage is not required.  In support of this contention he relied upon dicta of Lord Justice Maurice Kay at paragraph 18, Lord Justice Elias at paragraph 34 and Lord Justice Vos at paragraph 41 of Mba.  Alternatively it was so contended that the ET erred in applying too high a threshold test for group disadvantage to be satisfied.

46.	Mr Diamond relied on paragraph 11.9 of the Judgment of the ET to show that they proceeded on the basis that it was necessary to establish indirect discrimination to show that an apparently neutral PCP had a disparate impact on a group of which the Claimant was a member.  The ET held:
“11.9. … Accordingly a Claimant has to show more than just that they have been disadvantaged by the relevant requirement, but also that others who share their protected characteristic would also be adversely affected. …”
47.	Reliance was also placed by Mr Diamond on paragraph 17.2(ii) in which the ET observed in relation to the first PCP that the fact that the Claimant and others of his faith group also held his firm views on homosexuality was not disputed but it is not established that they thereby suffer any group disadvantage in relation to the disciplinary policy.

48.	Further, in paragraph 19.5 the ET held that it is a requirement of domestic law which is not inconsistent with the Claimant’s Article 9 rights, that he establish group disadvantage.

49.	Mr Diamond referred to the basis upon which the Employment Tribunal and the Employment Appeal Tribunal in Eweida had decided the case against the Claimant as shown in paragraphs 14 and 15.  They had proceeded on the basis that the concept of indirect discrimination implied discrimination against a defined group and that the Claimant had not established evidence of group disadvantage.  Counsel relied upon paragraphs 79 to 83 of the judgment of the ECHR in Eweida and their conclusion at paragraph 95 that the domestic authorities failed sufficiently to protect Ms Eweida’s right to manifest her religion by openly wearing a cross at work.  This was held to be in breach of the positive obligation under Article 9.

50.	Mr Diamond stated that Mba is the last word on the subject of the effect of Article 9 on domestic law.  He contended that the effect of the judgment of the Court of Appeal in that case was that it was sufficient to establish indirect discrimination that it was not only a solitary believer comparatively adversely affected by a PCP.  In accordance with the judgment in Mba it was not necessary to establish group disadvantage of the group of which the Claimant was a member.  It was submitted that all that is needed is that there are believers of any number of the viewpoint adversely affected by the PCP and that the Claimant was one of them.  Mr Diamond contended that the ET should therefore have held that EqA section 19(2)(b) was satisfied.  He submitted that the real issue was proportionality, the subject of section 19(2)(d) and Article 9.2.

51.	Mr Diamond submitted that the facts of this case mirror those considered in Mba.

52.	The claim in Mba concerned the Claimant’s objection, as a Sabbatarian, to working on a Sunday.  Lord Justice Maurice Kay held at paragraph 17:
“17. … Regulation 3(1)(b)(i) [the predecessor of EqA section 19(2)(b)] envisages a PCP which applies or would apply equally “to persons not of the same religion or belief” as the claimant and which puts or would put “persons of the same religion or belief” as the claimant at a particular disadvantage when compared with other persons.  The fact that those at the requisite particular disadvantage are described in the plural - “persons” - is the reason why the test is sometimes described as one of “group disadvantage”. However, the use of the disjunctive - “religion or belief” - demonstrates that it is not necessary to pitch the comparison at a macro level.  Thus it is not necessary to establish that all or most Christians, or all or most non-conformist Christians, are or would be put at a particular disadvantage.  It is permissible to define a claimant’s religion or belief more narrowly than that. …”

Lord Justice Maurice Kay observed at paragraph 18 that it was clear from evidence before the ET that “for some Christians, working on Sundays is unacceptable”.  On that basis it was held that:
“18. … the employment tribunal should have found that the application of the Sunday working PCP satisfied regulation 3(1)(b)(i), with the consequence that the real issue in this case was whether the council could show “a proportionate means of achieving a legitimate aim”, pursuant to regulation 3(1)(b)(iii) [now EqA section 19(2)(d)].”

53.	It was submitted that the Court of Appeal in Mba held that regulation 3(1)(b)(i) does not carry a threshold requirement of group disadvantage for establishing indirect discrimination.  In addition to the observations of Lord Justice Maurice Kay, Lord Justice Elias made clear in paragraph 34 that where the right to religious freedom under Article 9 is engaged, as it was in that case as the council is a public body, the protection of freedom of religion conferred by that Article does not require a Claimant to establish any group disadvantage.  Lord Justice Vos equated “the question of whether Sabbatarianism is a core component of the Christian faith” a term used by the Employment Tribunal in that case “to be equivalent to the more easily understood question of whether the belief is widely held”.  In paragraph 41 Lord Justice Vos considered that:
“41. … there is no reason why regulation 3(1)(b)(iii) cannot be equally well read to exclude [a consideration of whether the relevant belief is widely shared] on the ground that article 9 does not require any test of group disadvantage, and concentrates only on the religious freedom of the individual concerned.”

54.	When asked which Article 9 right is said to be engaged in this case, Mr Diamond replied that it was the rights of prisoners to attend a service and the right of a church not to sustain arbitrary interference.  Mr Diamond also referred to the Article 10 right of individuals to express views on sexual matters.

55.	Mr Diamond contended that when applying the judgment in Mba to the facts of this case, the ET erred in failing to hold that the first two PCPs put the Claimant as a Christian and a Pentecostal at a particular disadvantage.  There is no requirement that a certain number of Christians or Pentecostals share the Claimant’s views on homosexuality or the need to speak out in religious services.  Mr Diamond contended that it is recognised that a secular court is ill equipped to deal with matters of faith.  All that was needed in this case was for the ET to be satisfied that other Christians or Pentecostals shared the views of the Claimant.  The threshold for satisfying EqA section 19(2)(b) is low.  The ET therefore erred in dismissing the claim of indirect discrimination caused by the application of the first and second PCPs on the basis that the Claimant had not established a group disadvantage.

56.	Mr Purchase pointed out that there is no challenge to the findings of fact made by the ET in paragraphs 17.2(vi) and (vii).  The ET held that it was clear from his own evidence that what the Claimant said on 31 May 2014 at the relevant service went far beyond mere quotation of scripture.  He was in his own words “teaching and preaching”.  The Reverend Kinder had given evidence that it was important to both contextualise and approach with sensitivity within the Christian spirit of forgiveness the delivery of the Christian message, particularly within the prison environment.

57.	The ET observed in paragraph 17.2(vii) that the Claimant’s difficulties following the service on 31 May 2014 were due to his speaking out on damnation and homosexuality without putting the biblical words into context.  He showed lack of sensitivity to a congregation amongst whom were sex offenders and homosexuals.

58.	Mr Purchase contended that on the findings of fact the two PCPs imposed no prohibition on citing biblical passages.

59.	It was submitted by counsel that on their findings of fact the ET did not err in concluding that the group of which the Claimant was a member, Pentecostal Christians, did not suffer a disadvantage in comparison with others by the application of the first and second PCPs, the Conduct and Disciplinary Procedure and the Equality of Treatment for Employees Policy.  The Claimant was not investigated and disciplined pursuant to these policies because of a manifestation of his belief, citing from the Bible, but because he had gone beyond quoting from scripture.

60.	Counsel submitted that the second ground of appeal is not relevant to the application of the third PCP.  The ET had dismissed that claim as there was no evidence to support the third PCP alleged.

61.	Mr Purchase drew attention to paragraph 19.1 of the Judgment of the ET in which they directed themselves to be guided by the judgment of the Court of Appeal in Mba.  They correctly directed themselves that they were required as far as possible to read and give effect to domestic legislation in a way which is compatible with Convention rights.  Whilst the ET referred to “group disadvantage” as a requirement of domestic law not inconsistent with Article 9, there was no finding that the Claimant’s actions, for which he was subjected to the first and second PCPs, had the support of the Reverend Kinder or the church as a whole.  Even if there were no requirement to establish a group disadvantage when considering EqA section 19(2)(b) there must be some disadvantage to others with a shared characteristic.

62.	With regard to the nature of the Article 9 rights which Mr Diamond relied upon in the course of the hearing before the EAT, that of prisoners’ rights to religious services, Mr Purchase pointed out that the claim before the ET was brought by Mr Trayhorn not by a prisoner or prisoners.  There had been no evidence before the ET that any prisoner had felt disadvantaged by the Claimant not being allowed to preach or publicly express his views in services in the chapel.

63.	Mr Purchase contended that in any event the judgment of the Court of Appeal in Mba shows that numbers disproportionately affected by the application of a PCP may be relevant to the decision as to whether its application has been justified.

64.	In any event the ET took into account Article 9 in deciding whether the application of the first two PCPs was justified.  Mr Purchase drew attention to paragraph 18.5 of the Judgment of the ET in which they recognised the right of the Claimant to espouse his views outside the prison environment including, if he so wished, at public church services.  They held that a limitation on his doing so in the special circumstances of the prison was a proportionate means of achieving the legitimate aim of retaining order and protecting prisoners within the prison environment.  The ET accepted at paragraph 18.3 that the existence and enforcement of the policies the subject of the first and second PCPs were of substantial importance within the particular circumstances of HMP Littlehey.  Accordingly the ET concluded that the application of the Disciplinary and Equalities Policies within the prison was found to be a proportionate means of achieving a legitimate aim.

Discussion and Conclusion
65.	EqA section 19 provides:
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if-
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

66.	Both Mr Diamond and Mr Purchase rightly agreed that the ET was required to apply the judgment of the Court of Appeal in Mba to the claim before them.  Mr Diamond described Mba as the last word on the subject of Article 9 and domestic indirect discrimination law.

67.	In Mba it had been conceded that the provision requiring Sunday working constituted the group disadvantage identified in regulation 3(1)(b)(i), now EqA section 19(2)(b).  Therefore the only issue before the ET was whether the employer could justify the provision under what is now EqA section 19(2)(d).
68.	However Lord Justices Maurice Kay and Elias made observations on the requirements of what is now EqA section 19(2)(b).  At paragraph 17 Lord Justice Maurice Kay referred to the use of the plural in regulation 3(1)(b)(i), the application of a PCP ““to persons not of the same religion or belief” as the claimant and which puts or would put “persons of the same religion or belief” as the claimant at a particular disadvantage when compared with other persons”.  He held that:
“17. … it is not necessary to establish that all or most Christians, or all or most non-conformist Christians, are or would be put at a particular disadvantage. …”

Lord Justice Maurice Kay observed at paragraph 18 that it is clear that for some Christians working on Sunday is unacceptable and if it were needed there was evidence to that effect, and that the Claimant’s religious belief embraces that injunction.  It was held that on that basis the ET should have held that the Sunday working PCP satisfied regulation 3(1)(b)(i).

69.	Lord Justice Elias held at paragraph 33 that group disadvantage has to be established for justification of the PCP to be required.  However Lord Justice Elias held that once such disadvantage had been established, it was difficult to imagine that a court would give much weight to the fact that the size of the pool adversely affected is in principle potentially large if that is not the case in relation to a particular employer.

70.	Lord Justice Elias held that the protection of freedom of religion conferred by Article 9 does not require a Claimant to establish any group disadvantage.  The Judge observed that the Claimant’s Article 9 right was incapable of direct enforcement in the Employment Tribunal even though she was employed by a state body.  Lord Justice Elias held at paragraph 35 of what is now EqA section 19(2)(b):
“35. … In my judgment, it is simply not possible to read down the concept of indirect discrimination to ignore the need to establish group disadvantage. …”
However Lord Justice Elias saw no reason why the concept of justification in what is now section 19(2)(d) could not be read compatibly with Article 9 when that provision was in play.  It was in play in Mba as the Claimant was, as in this case, an employee of a state body.  For the purposes of EqA section 19(2)(d) it would not matter whether the Claimant was disadvantaged along with others or not.  However the number of employees adversely affected by a PCP may be relevant to the issue of whether it is justified.

71.	Lord Justice Vos held that in cases in which Article 9 was not applicable the question of the numbers of those in the group of which the Claimant was a member who were adversely affected by the PCP might be relevant to the question of justification and proportionality.  However in Mba, as in this case, where the employer is a state body and Article 9 is to be considered, the quantitative question, how many are disadvantaged by the PCP, is not necessarily relevant to determining justification.  Lord Justice Vos held at paragraph 41:
“41. … The question of whether the claimant’s belief was widely held might, in theory and absent article 9, be relevant to the proportionality question for the reasons I have given.  But there is no reason why regulation 3(1)(b)(iii) cannot be equally well read to exclude such a consideration on the ground that article 9 does not require any test of group disadvantage, and concentrates only on the religious freedom of the individual concerned.”

72.	In my judgment it is clear from the judgment of Lord Justice Elias in Mba that it is not possible to read the predecessor of EqA section 19(2)(b) in a way which ignores the need to establish group disadvantage notwithstanding that protection of freedom of religion under Article 9 does not require a Claimant to establish any such group disadvantage.  Accordingly the ET did not err in considering whether the first and second PCPs led to “any group disadvantage”.  Moreover at paragraph 17.2(vii), the ET observed that they had not been taken to any part of the Policies which were the basis of the PCPs which put the Claimant or those of a Christian faith or of the Pentecostal denomination at a disadvantage singly or as a group.  Whilst more frequent reference was made to “group disadvantage” this passage shows that the ET also considered whether there was evidence that any individual Christian had been disadvantaged by the PCPs, and had concluded there was not.

73.	The right to manifest religion is provided in domestic law by the EqA.  Domestic law provides two distinct routes by which such rights may be enforced: a claim of direct discrimination under section 13 and indirect discrimination under section 19.  Domestic law provides for a defence to a claim of indirect discrimination but not to a claim of direct discrimination.  As is provided by statute and put beyond doubt by the judgment of the Court of Appeal in Mba, the statutory threshold in section 19(2)(b) for a Claimant in an indirect discrimination claim of showing that the relevant PCP puts or would put persons with whom the Claimant shares the relevant characteristic at a particular disadvantage when compared with persons with whom the Claimant does not share it is to be applied to claims of indirect discrimination.

74.	Article 9 of the ECHR makes no distinction between direct and indirect discrimination.  The right to freedom of religion may be subject only to a proportionate restriction in pursuit of a legitimate aim.  Accordingly once it has been decided that an act is a manifestation of a religious belief which, applying the judgment of the ECHR in Eweida at paragraph 82, may be if it is intimately linked to the religion or there is a sufficiently close and direct nexus between the act and the underlying belief, the issue for the courts is whether the restriction on the manifestation of which complaint is made is in pursuit of a legitimate aim and is proportionate.  Each case must be decided on its own facts.

75.	The Court of Appeal in Mba held that Article 9 rights which are not subject to the threshold requirement for indirect discrimination required by EqA are secured by an interpretation of the section 19(2)(d) proportionality restriction which does not require a quantitative effect of the relevant PCP to be taken into account.  Whether it is and to what effect depends upon the circumstances of the case.

76.	The alternative argument advanced by Mr Diamond in support of ground 2 of the appeal is that if the threshold test of group disadvantage applies to claims of indirect discrimination, the ET applied too high a threshold.  He submitted that as a matter of principle the bar to surmount the precondition for a claim of indirect discrimination in section 19(2)(b) should not be set too high.  Lord Justice Maurice Kay in Mba considered the threshold in the predecessor of section 19(2)(b) although in that case it had been conceded that the provision was satisfied.  He held at paragraph 17 of the relevant wording:
“17. … Thus it is not necessary to establish that all or most Christians, or all or most non-conformist Christians, are or would be put at a particular disadvantage. …”

Lord Justice Maurice Kay considered that the threshold of what is now section 19(2)(b) was satisfied because it was clear and there was evidence that for some Christians working on Sundays, the PCP in that case, was unacceptable.

77.	Lord Justice Elias held at paragraph 34 that where Article 9 is in play as it is in a claim against a public body as it is in this case in considering the concept of justification now in section 19(2)(d) it does not matter whether others are disadvantaged with the Claimant.  However a claim would not reach the justification stage if it had not surmounted the precondition of section 19(2)(b) that others in addition to the Claimant who share the Claimant’s religious belief are put at a disadvantage by the PCP.  Having regard to the interpretation of section 19(2)(d), in my judgment a claim may surmount the section 19(2)(b) hurdle if, adopting the language of Lord Justice Maurice Kay, some individuals of the Claimant’s religion are disadvantaged by the relevant PCP.  To this extent it may be said that the threshold of section 19(2)(b) is not a high one.  However as Lord Justice Elias held in Mba it is there and cannot be ignored.  Whether it has been surmounted is a question of fact in each case.

78.	In the Claimant’s case the ET found as a fact in paragraph 17.3(i) that there was no evidence of the unwritten policy asserted to be the third PCP.  The ET held in paragraph 17.3(iv) that no “unwritten practice” as alleged existed.  There is no appeal from that finding.

79.	Further, in paragraph 17.2(vii) the ET held that no part of the Conduct and Disciplinary Policy or the Equality of Treatment of Employees Policy, the application of which were said to constitute the first and second PCPs, were identified as putting either the Claimant as an individual or those of a Christian faith or those of a Pentecostal denomination at a disadvantage whether singly or as a group.  There is no appeal from that finding of fact.

80.	Although in the course of their Judgment the ET referred to “group disadvantage” in the context of section 19(2)(b) they did not reach their decision on that basis.  They decided that on the facts before them they were not satisfied either that the Claimant as a Christian was disadvantaged by the two PCPs or that other Christians whether “singly or as a group” were disadvantaged.

81.	Ground 2 of the appeal is dismissed.

Ground 3
82.	By ground 3 it was contended that the ET failed to undertake “a proper balancing act” between the Claimant’s Article 9/Article 10 rights and the proposed limitation of those rights particularly in the light of the principle of church independence.  It was said that the analysis by the ET of Convention rights in paragraph 19 “of their judgment” is artificially and erroneously divorced from the analysis of proportionality in paragraph 18.

83.	Mr Diamond submitted that proportionality was the real issue in the claim before the ET as it was in Mba.  Counsel referred to the doubt expressed by Lord Justice Maurice Kay at paragraph 19 as to “whether there is a quantitative element to be considered … as part of the proportionality exercise”.  He was not convinced that there necessarily is.  Lord Justice Elias held at paragraph 35 that where Article 9 is in play, in considering proportionality it does not matter whether others as well as the Claimant are disadvantaged by the PCP.  Mr Diamond referred to paragraph 34 in the judgment of Lord Justice Elias and the difficulty or otherwise of accommodating the religious practices of the Claimant.  Lord Justice Vos at paragraph 39 explained the reference by the ET in Mba to whether Sabbatarianism was a “core component” of the Christian faith to be equivalent to the more easily understood question of whether the belief is widely held amongst the Christian population.  Lord Justice Vos held at paragraph 41 that where Article 9 is engaged there is no reason why what is now section 19(2)(d) cannot be read not to require a test of group disadvantage but to concentrate on the religious freedom of the individual concerned.

84.	Mr Diamond submitted that the Article 9 rights of prisoners to attend Pentecostal services were engaged in this case.  He also contended that Article 10 rights to freedom of expression were engaged and the right under Article 13 of a church not to sustain arbitrary interference.  The Claimant had the right to articulate his views on sexual ethics and to evangelise.  These rights should have been given particular regard by the ET and they failed to do so in holding at paragraph 18.2 that the first and second PCPs were a proportionate means of achieving legitimate aims.  In so holding it is said that the ET failed to apply the Claimant’s Convention rights referred to in paragraph 19 of their Judgment.

85.	Mr Purchase submitted that the ET demonstrated by their reasoning in paragraphs 18.2 and 18.5 that they took into account the respect to be accorded to the manifestation of the religious beliefs of the Claimant.

86.	Mr Purchase for the Respondent contended that there was no evidence before the ET that the PCPs failed to take into account the Pentecostal church as a whole.  In any event the approach of the Respondent had no impact on the practices of the Pentecostal church.  The Claimant was free to act as he wished outside the prison.  There was no evidence before the ET that the Pentecostal church would want to behave in the way which the Claimant did in the service on 31 May 2014.  Mr Purchase referred to paragraph 17.2(iv) of the Judgment in which the ET held:
“(iv) Neither the Rev. Kinder nor the Rev. Nyandoro (who is also a Pentecostal Minister) suggested they believed, or in any way supported, the Claimant’s view, that the provisions of those policies served to disadvantage Christians or Pentecostals as a group.”

87.	Mr Purchase referred to the Ensuring Equality document which states at paragraph A.1:
“NOMS staff are expected to meet high standards of professional and personal conduct, and this includes complying with the legal responsibilities in the equalities legislation.  As well as refraining from discrimination, harassment and victimisation, these include actively promoting equality.  All staff are personally responsible for their conduct in this area and failure to maintain the required standards can lead to action, which may result in dismissal from the Service.”

Counsel pointed out that there is nothing in the document which prohibits staff from quoting from the Bible.

88.	Counsel submitted that insofar as Mr Diamond referred to interference with Article 9 and Article 10 rights of prisoners, the claim before the ET was not brought by them and there was no evidence recorded by the ET that they had brought such complaints.  In any event the claim before the ET was that brought by the Claimant.  It was the alleged interference with his rights which was at issue.

89.	Mr Purchase contended that the ET carefully considered the aims of the prison authorities in applying their Discipline and Equality Policies.  These aims were set out in paragraphs 18.1 and 18.2 of their Judgment.  It could not be suggested that maintaining security and good order in the prison and ensuring equality of treatment were not legitimate aims.  Using appropriate procedures in furtherance of those aims in a way which only restrained the Claimant’s conduct as a volunteer which had caused and risked causing offence in the prison population was necessary and proportionate.  The ET had not failed to balance conflicting rights as alleged in ground 3.

Discussion and Conclusion
90.	The task of the ET in applying section 19(2)(d) read together with Article 9, as required in the claim as it is brought against a public authority, is to decide whether the Respondent has shown whether the PCPs at issue are a proportionate means of achieving a legitimate aim.

91.	On the basis of their findings of fact on what the Claimant said at the service on 31 May 2014, the complaints of some prisoners and the critical views of the Claimant’s conduct by the Reverend Kinder and the Reverend Nyandoro the ET concluded:
“18.1. We should further confirm that there is a paramount duty which exists within the prison service and in this specific case on the Governors in Stafford HMP Littlehey to maintain the security of the prison, to ensure the proper maintenance of order within the prison and to protect the security of everyone within the prison, be they staff, prisoner or visitor.  Part of that duty is to ensure the equality of treatment within the prison between people as far as is possible.  That is a wholly legitimate aim.
18.2 In those circumstances, had it been necessary for us to do so, we would have found that the specific PCPs found were, in accordance with section 19(2)(c) of the Equality Act 2010 a proportionate means of achieving those wholly legitimate aims.  Our conclusions in this matter were particularly reinforced by the evidence of Mr Taylor, who said that derogatory remarks regarding any specific group within the prison could be seen to legitimise misbehaviour towards them, particularly if made by someone in a position of presumed authority, such as a member of staff or someone preaching in a prison service.  That legitimisation of inappropriate behaviour could risk order and control within the prison and may be seen to legitimise bullying or other mistreatment towards a group of prisoners sharing a particular characteristic.  He said it could further lead to feelings of increased vulnerability amongst those groups including groups within the prison who already suffered from low self-esteem which would be enhanced by criticism based on their characteristic.”

92.	In my judgment the decision of the ET at paragraph 18.3:
“18.3. That explanation by Mr Taylor demonstrated perfectly the reason why the existence and enforcement of the relevant policies was of substantial importance within the particular circumstances of HMP Littlehey.”
was plainly open to them.

93.	The ET considered whether the enforcement of the Respondent’s Discipline and Equalities Policies had imposed a disproportionate restraint on the manifestation of the Claimant’s religious belief.  In the light of their findings of fact at paragraph 10.45 from Rev. Nyandoro, a Pentecostal Minister, that he recognised the sensitivity in an establishment such as HMP Littlehey around equalities and that he would have used the Bible text in a different way and put it into context and at paragraph 18.4 that the Rev. Kinder said that the Equality Policy did not prevent the effective and full operation of the Chaplaincy which operated in a pastorally sensitive manner, it is apparent that the ET weighed any restraint on expression of the Claimant’s religious belief in the balance in deciding whether the Respondent had established that the application of the Discipline and Equalities Policies in the circumstances was a proportionate means of achieving a legitimate aim.

94.	In my judgment the ET did not err in their consideration of EqA section 19(2)(d) read, as it is in this case of a claim against a public authority, together with Article 9.  They reached their decision on their unchallenged findings of fact.

95.	Ground 3 of the appeal is not made out.

Disposal
96.	Despite the full, learned and wide ranging arguments advanced by Mr Diamond, this appeal is dismissed.