Group disadvantage is required for indirect discrimination

Mr T was employed by the Secretary of State at HM Prison Littlehey as a gardener.

As a Pentecostal Christian and ordained minister, Mr T also volunteered for services in the prison chaplain. A complaint was made he had commented during a service in the chaplain that same sex marriage was “wrong” and he was told not to preach at any further services from April 2015, but he was permitted to lead singing.

In May 2014, during singing, Mr T “led to share” verses from the Bible, including Corinthians 6: 9-11 which says that “the unrighteous shall not inherit the Kingdom of God” and goes on to reference as the unrighteous various groups of people including “fornicators”, “adulterers” and “effeminate”. Further complaints were received and Mr T was no longer permitted to volunteer at services.

An investigation concluded that disciplinary action was warranted as Mr T had made homophobic comments. Mr T resigned and brought a claim for constructive dismissal, in addition to claims for direct and indirect religious discrimination. Mr T’s indirect discrimination claim was that the:

• prison had applied a provision, criterion or practice (PCP), being its conduct and equality policy.
• PCPs put or would put people of Mr T’s religion or belief at a particular disadvantage when compared to other people; specifically, people of the Christian faith, and especially Pentecostal denomination, were more likely to quote parts of the bible that offended these policies. This is often referred to as group disadvantage.
• PCPs put Mr T at that disadvantage.
• PCPs could not be justified as a proportionate means of achieving a legitimate aim.

The tribunal held that Mr T had not produced any evidence in support of either group or individual disadvantage and, in any event, they would have found that the policies pursued legitimate aims – the need to retain order and protect prisoners – and they were a proportionate means of achieving the aims. His claims for discrimination were, therefore, unsuccessful and Mr T appealed.

One of the grounds of appeal was that the tribunal had erred in relying on the need for group disadvantage to establish indirect discrimination. Mr T argued that the right , provided for under Article 9 of the ECHR, did not require proof of group disadvantage.

The EAT referred to the earlier case of Mba v Mayor and Burgesses of the London Borough of Merton. The Mba case clearly held that it was not possible to ignore the need to establish group disadvantage and the EAT decided that the tribunal had been right to decide the case as it had.  In any event, the EAT noted that the claim had also failed because Mr T had not established his own personal disadvantage and concluded that the PCPs were objectively justified.

This case reminds us that, at least for now, any claim successful claim for indirect discrimination must include group disadvantage, despite the potential incompatibility of that with Article 9 and should minimise claims where this does not exist where the claimant seeks to rely directly on Article 9.