Mrs Pendleton was a Teacher with an exemplary record of service; she was well-respected and highly-regarded. She taught 10-11 year olds and she had no pre- or post-school responsibilities or other extra curricular contact with students.
We will trace the remarkable facts which led to her being unfairly dismissed and subject to indirect religious discrimination.
Her husband was a Headmaster at another local School (within the same cluster group so there was some partnership working between the Schools). He was dismissed following his conviction for making indecent images of children and voyeurism. Ten months’ imprisonment was his sentence. The voyeurism was him taking a camera, covertly secreted within a pen, into the boys changing rooms at School and taking photographs of undressed young boys.
There was no suggestion that Mrs Pendleton knew of her husband’s actions prior to his arrest. Indeed, she was shocked and distressed and left the marital home for a period. She took a period of leave from work, having initially been reassured by the Headteacher that her job would remain open.
On the basis that Mr Pendleton had demonstrated unequivocal repentance, Mrs Pendleton was determined to stay with her husband pursuant to her Anglican Christian marriage vows.
Mrs Pendleton’s employer, Derbyshire County Council, dismissed her for choosing to maintain her marriage with her husband. She claimed unfair dismissal and also indirect religious discrimination.
It was found that her dismissal was unfair and wrongful for the following reasons:
- Neither purported reason for dismissal (conduct or Some Other Substantial Reason) was established;
- The decision was pre-determined;
- The investigation was woefully inadequate;
- There was a failure to consider mitigation (her otherwise unblemished career) or alternatives to dismissal;
- The appeal panels failed to exercise independent judgment; and
- The decision to dismiss was well outwith the band of reasonable responses.
Had I been advising the School, I would have endeavoured to present evidence of some other substantial reason justifying termination, namely the total loss of confidence in her by teachers and parents because of their perception that she did not exercise sound judgment.
Indirect religious discrimination
There was no dispute that Mrs Pendleton was a committed and practising Anglican Christian. Shegenuinely believed that marriage vows were sacrosanct, having been made to God and being an expression of her religious faith.
Her employer applied a provision, criterion or practice, namely a policy/practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism. The policy would have been applied across the board (looking forward, there was an element of potential recurrence), regardless of whether there was held a religious belief in the sanctity of marriage vows.
The dismissal policy placed the Claimant (and those sharing her religious belief) at a particulardisadvantage given the crisis of conscience they would face; that finding was not affected by the fact that others (not sharing that religious belief) would also be placed at a disadvantage by the application of the policy. The policy was intrinsically liable to disadvantage a group sharing the religious belief (i.e. protected characteristic) of Mrs Pendleton.
The above facts lead to the conclusion that Mrs Pendleton was subject to indirect discrimination by reason of her religious belief.
As you may be aware, indirect discrimination can potentially be objectively justified.
There was no evidence presented by the employer to justify that its policy of dismissal was a proportionate means of achieving a legitimate aim (the protection of safeguarding of children in a school environment) and therefore not unlawful. There was no evidence about why dismissal wasproportionate or if there was an alternative less discriminatory means of achieving the legitimate aim. Similarly, the employer had also failed to present evidence of Mrs Pendleton’s lack of insight as to the difficulties arising from her continued association with a convicted sex offender.
In reading this case, I found myself wondering whether the School could in fact have gathered and presented evidence that dismissal was a proportionate means of achieving its legitimate aim, having particular regard to the fact that teachers have to be able to be trusted to make complex and sensitive decisions in order to safeguard their students. If the School had presented such evidence, it may not have been found to have committed indirect religious discrimination.