Dismissal of a teacher who stood by her sex offender husband was indirect religious discrimination.

In this case, the EAT considered whether a tribunal had been wrong to dismiss a claim for indirect discrimination because of religion or belief.

The facts

Ms Pendleton was a primary school teacher. She had an unblemished disciplinary record, was well respected and highly regarded by students, colleagues and parents. She was a committed and practising Anglican Christian. She was married to a head teacher at a nearby junior school that was part of the same cluster as the school at which she worked.

Ms Pendleton's husband was arrested and later convicted for downloading indecent images of children and voyeurism. The fact of his arrest and conviction gave rise to rumour and gossip in the local community. Ms Pendleton, was found by local authority to have had no involvement with these crimes. She decided that she would stay with her husband. While not condoning or giving the impression of condoning her husband's actions, she maintained this was consistent with her marriage vows, and specifically with her commitment, in the presence of God, for better or worse, to stay, provided she was satisfied he had demonstrated unequivocal repentance.

Ms Pendleton attended several meetings, including disciplinary meetings, at which the situation was discussed. The decision was taken that she should be summarily dismissed because she had "…chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role…have been eroded. Furthermore the choices [she had] made in [her] personal life are in direct contravention to the ethos of…the…School."

Ms Pendleton successfully claimed that she had been unfairly dismissed. She also brought a claim for indirect religion or belief discrimination, which the tribunal dismissed. The tribunal found that she did hold a belief – that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith. Her employers had applied a provision, criteria or practice (a "PCP"), which was a policy of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism. However, it found that she would have been dismissed irrespective of her belief in the sanctity of her marriage vow, so there had been no group disadvantage (as is required by the legislation).

Ms Pendleton appealed against the finding that there had been no group disadvantage. The EAT upheld her appeal. The comparative exercise the tribunal had to carry out had to be based upon groups that were, with the exception of the particular protected characteristic, in circumstances that were the same or not materially different. The comparison of both groups (those sharing Ms Pendleton's protected characteristic, as compared to those who did not share that characteristic but to whom the PCP would also be applied) would involve comparing people who were in long-term loving relationships. Both groups would undoubtedly face a very real disadvantage if forced to choose between their partner and their career. The question for the tribunal had been to ask whether, accepting the difficulty inherent in such circumstances for anyone in a loving and committed relationship, those who also held a religious belief in the particular sanctity of marriage, arising from the sacrosanct nature of vows made before God, faced a particular disadvantage. The EAT said that, comparing the two groups, the tribunal was bound to have held that the group which also held a religious belief in the sanctity of marriage vows faced a particular disadvantage.

Ms Pendleton's employers cross appealed on the basis that there had been no PCP in this case, because, to be a PCP, there needed to be an element of repetition. However, the EAT dismissed this appeal. It distinguished between an isolated failure to follow a policy, which would not constitute a PCP, and this situation, where the decision to dismiss flowed from the application, however rare, of a practice. Here, the practice had been to dismiss any employee who elected to stand by their spouse or partner in the circumstances that Ms Pendleton had faced. While they might not have applied that policy or practice previously, the tribunal had been entitled to conclude on the respondents' evidence that this is how they would respond in such circumstances.

What does this mean for employers?

Employers should bear in mind that the test for indirect discrimination is whether the group with the protected characteristic suffers a "particular" disadvantage. In this case, both groups of employees –those with and without the protected characteristic – would suffer a very real and significant disadvantage in having to choose between their relationship and their career, but the crisis of conscience that Ms Pendleton would suffer was enough to put her at a "particular" disadvantage. Employers should therefore be alive to the risk of indirect discrimination claims when making decisions that might conflict with religious beliefs.

In this case, the employer may have had a legitimate aim – the safeguarding of children in a school environment – but it did not consider alternatives to dismissal, and could not show that it was proportionate to dismiss Ms Pendleton, as opposed to taking other action to achieve its aim. This is another reminder to employers of the need to be able to articulate what their legitimate aim is, and why their actions are a proportionate means of achieving that aim.

Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School UKEAT/0238/15, 29 March 2016