In an unusual case, the EAT has held that the dismissal of a teacher who refused to leave her husband (who had been convicted of sex offences) amounted to indirect religious discrimination (Pendleton -v- Derbyshire County Council and the Governing Body of Glebe Junior School 2016).

Ms Pendleton was employed as a teacher and was a practising Christian. Her husband was a teacher at another local school, and was arrested on suspicion of downloading indecent images of children, and voyeurism (he had been using a hidden camera in the school changing rooms). There was no suggestion that Ms Pendleton had known about these activities, but she decided to stay with her husband in order to uphold her marriage vows. The school alleged gross misconduct in the form of erosion of trust and confidence in her ability to carry out safeguarding responsibilities as a teacher if she stayed with her husband, and commenced disciplinary proceedings. Several months later and after Mr Pendleton had been convicted, she was summarily dismissed in consequence of her decision to stay with her husband.

The Tribunal dismissed the claim on the basis that there was no group disadvantage, i.e. the school would have dismissed anyone who chose not to end a relationship in such circumstances. On appeal, the EAT held that in fact there had been a particular disadvantage for those with a religious belief in the sanctity of marriage vows. Although it would be a difficult choice for anyone in a long-term and committed relationship (of whatever type), those who held a religious belief in the particular sanctity of marriage, would in fact face a particular disadvantage. It was not relevant either that the policy in question had only been relied upon once. This was not just a one-off decision and the Tribunal had been entitled to decide on the evidence that the school would respond in the same way should such highly unusual circumstances arise again, and as a result there was a policy, criterion or practice in place.