Pendleton v (1) Derbyshire County Council (2) The Governing Body of Glebe Junior School UKEAT/0238/15/LA

Why care?

Under the Equality Act 2010, indirect religion and belief discrimination occurs where:

  • A applies to B a provision, criterion or practice (PCP) which would apply also to those who do not have the same religion or belief (or lack of the same) as B,
  • that PCP puts or would put persons who share B’s religion, belief, or lack of the same, at a particular disadvantage compared to others (known as group disadvantage)
  • A cannot show that the PCP is a proportionate means of achieving a legitimate aim (objective justification).

In Nottingham City Transport Ltd v Harvey (2012), the EAT held that a one-off flawed disciplinary procedure was not a PCP since it could not be a provision or criterion, and a practice required an element of repetition.

In this case, a school was faced with a unique (in its experience) situation when it had to decide whether to continue the employment of a Christian teacher who believed in the sanctity of her marriage vows, and whose husband had been convicted of sexual offences against pupils at the school where he worked.

The case

The Claimant was a junior school teacher and a committed and practising Anglican Christian married to the headteacher of another local school. In 2013, her husband and later convicted of downloading indecent images of children and of voyeurism involving school pupils.

Immediately after the arrest in January 2013, the Claimant took a period of sick leave from work having been reassured by Mrs Seymour, the head of her school, that her job would remain open. The Claimant decided that, whilst she did not condone or wish to give the impression of condoning her husband’s activities, she would stay with her husband provided she was satisfied he had demonstrated unequivocal repentance. She did so because of the importance she placed on her marriage vows and specifically her commitment, in the presence of God, for better or worse.

Despite both the Council and the School’s confirmation that there was no evidence the Claimant had known about or been involved in her husband’s actions, it was made clear to the Claimant that it would not be appropriate to return to work if she continued to stand by her husband and that disciplinary procedures would be implemented. The Claimant was warned that if she decided to stay with her husband, the governing body of the School and the parents did not wish her to return (although no evidence of this was provided). When the Claimant asked if she was being invited to choose between her marriage vows and her career, she was met with “shrugs and raised eyebrows”.

After her husband’s conviction, the Claimant was suspended and the HR director of the Council told the School that it considered the Claimant to be unsuitable as a teacher for as long as she stood by her husband. Following a discliplinary hearing in September 2013, she was summarily dismissed for having chosen to maintain a relationship with her husband, which the panel believed made her unsuitable to carry out her safeguarding responsibilities, and because her decisions were in direct contravention to the school’s ethos. Her appeal was dismissed.

The Claimant brought Employment Tribunal proceedings for wrongful dismissal, unfair dismissal and indirect religion or belief discrimination. The Tribunal held she had been wrongfully and unfairly dismissed, that she believed her marriage vow was sacrosanct and an expression of her religious faith, and that the school had a policy (PCP) of dismissing those who chose not to end a relationship with a person convicted of crimes such as those her husband had committed. However, the Tribunal found that there was no group disadvantage since she would have been dismissed irrespective of her Christian beliefs. It went on to say that, had there been a disadvantage, then her dismissal was not a proportionate means of achieving a legitimate aim (safeguarding).

The Claimant appealed to the EAT against the finding there was no group disadvantage; the Respondents cross-appealed the findings there had been a PCP and that her dismissal was not a proportionate means of achieving a legitimate aim.

The EAT upheld the Claimant’s appeal, and dismissed the Respondents’ cross-appeals, holding that whilst “policy” was not the word used in the Equality Act, a policy was capable of being a practice. The Respondents’ practice had been to dismiss any employee who stood by their partner or spouse in the Claimant’s position. Whilst this might have been the only time they had faced this “highly unusual” situation, the Tribunal had found that the Respondents had operated a “closed mind” to the Claimant’s circumstances, taking the view there could be no alternative to dismissal, and the evidence of the Chair of Governors was that this was how they would have treated anyone in such circumstances (whereas in Nottingham City Transport Ltd v Harvey, the flawed disciplinary procedure was not standard practice).

The EAT held that there had been a group disadvantage. The correct question was whether being forced to choose between their partner and their career might have given rise to a particular disadvantage (all other things being equal) for those with a religious belief in the sanctity of marriage vows. Both those in long-term loving relationships outside marriage and those who were married would face a very real additional disadvantage if forced to choose between their partner and their career; those who also held a religious belief in the sanctity of marriage would face a particular dilemma and disadvantage.

What to take away

Would it be discrimination to dismiss someone in a long-term unmarried relationship? The EAT took great care to stress that no less respect should be given for those who are in a loving and committed relationship (whether or not married) but did not share the Claimant’s religious views about marriage. However, it is possible that someone could make out a similar claim based on philosophical belief.

The case also demonstrates the difference between a “one off” act and what happened here, where even although the Respondents had never faced that situation before, the evidence was sufficient for the Tribunal to find what its practice or policy would be.

A word of caution: it seems that the Respondents did not adduce evidence before the Tribunal to demonstrate that the decision to dismiss was objectively justified, but did not do so. In principle, if they had been able to demonstrate this, the claim might still have failed.

Although not raised in this case, it is unlawful to discriminate because of marital status. In several cases, the question has arisen as to whether a female employee is protected where the reason for the treatment complained of was not that she was married, but that she was married to a particular person. There are three conflicting EAT decisions in this area. In Hawkins v Atex Group Ltd and others (2012), the President of the EAT stated that the key question is whether the claimant suffered the treatment complained of because she was married to the man in question. The relevant comparator is a person who is not married, but whose relevant circumstances are otherwise the same as those of the claimant (usually someone in a “common law” marriage with the same person).

The Claimant in this case was a junior school teacher. Had she been an infant school teacher working with the youngest pupils, there would have been an added complication to the case. The Childcare Act 2006 and subsequent secondary legislation makes it necessary in certain circumstances for those working with children to disclose the convictions of those with whom they share a household (even if only as a lodger) and they may be barred from relevant childcare provision (under Regulation 9 of the Childcare (Disqualification) Regulations 2009. This includes staff working with pre-schoolers and Reception age children and children receiving childcare up to the age of 8 in school settings outside school hours, and those who manage such a provision. This includes volunteers. Further details of the Regulations and what they mean for schools and employers are to be found in the government’s Guidance.