Indirect Religious Discrimination

June 3, 2016, By

In the case of Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School, the Employment Appeal Tribunal (EAT) has held that a teacher suffered indirect religious discrimination because she was dismissed for staying with her husband (the head of another school), after he was convicted of voyeurism and for downloading indecent images of children.

By way of background, Mrs Pendleton had been a junior school teacher since September 2001. Her husband was the head of another local school. In 2013, Mr Pendleton was arrested on suspicion of downloading indecent images of children and voyeurism. The voyeurism involved using a camera hidden in a pen to photograph boys in his school’s changing rooms.

Mrs Pendleton, a practising Christian, decided to stay with her husband, as long as she was satisfied he had demonstrated unequivocal repentance. This was consistent with her marriage vows, specifically her commitment, in the presence of God, ‘for better or worse’. She did not condone or give the impression that she condoned his actions.

At a Lead Authority Designated Officer (LADO) meeting it was confirmed that there was no evidence that Mrs Pendleton knew about her husband’s activities. However, the head of Mrs Pendleton’s school claimed that they struggled to see how it could support her if she remained with him. In March 2013, at a further LADO meeting, it was decided that it would be inappropriate for Mrs Pendleton to return to her job if her husband was convicted of offences and she continued to support him.

In April 2013 she was told there would be ‘consequences’ if she stayed with her husband, that the governing body had already indicated that it did not wish her to return and that a number of parents had written to express concern. No evidence was ever disclosed to support this. When Mrs Pendleton asked if she was being invited to choose between her marriage vows and her career, she was met with shrugs and raised eyebrows.

In July 2013, Mr Pendleton started his 10 month prison sentence. In August 2013, Mrs Pendleton was suspended. The HR Director of Derbyshire County Council confirmed to Mrs Seymour that as long as Mrs Pendleton stood by her husband it considered her unsuitable to be a teacher. Mrs Pendleton considered she had done nothing wrong, was a separate person to her husband, had an exemplary track record in safeguarding and was not a risk.

In September 2013, following a disciplinary hearing, Mrs Pendleton was dismissed for having chosen to stay with her husband. Her internal appeal was unsuccessful. Mrs Pendleton then brought tribunal proceedings including a claim for indirect religion or belief discrimination. The employment tribunal dismissed the claim and Mrs Pendleton appealed.

The EAT allowed the appeal and substituted a finding that there had been indirect discrimination. The EAT held that the tribunal had failed to ask the right question which 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.

To avoid an indirect discrimination claim, it had been open to the respondents to adduce evidence to demonstrate that the dismissal was a proportionate means of achieving the legitimate aim identified. However, there had been no such evidence presented to the tribunal.

The EAT subsequently held that a group, which held a religious belief in the sanctity of their marriage vows, faced a particular disadvantage in this situation. Upholding the indirect religious discrimination claim, the EAT stated that Mrs Pendleton had been faced by “a crisis of conscience”. She had, in essence, been forced to choose between the end of her career and abandoning her marriage vow. The decision to dismiss Mrs Pendleton was thus held to be “outside the band of reasonable responses” open to the governors and that Mrs Pendleton had been placed at “a particular disadvantage” because of her religious convictions.

The value of Mrs Pendleton’s compensation for unfair dismissal and religious discrimination is yet to be assessed, yet this case highlights the importance of complying with the Equality Act 2010 when potentially discriminatory issues arise in the workplace.

Should you or your business require any further clarification about this area of the law then please do not hesitate to contact the Slater Heelis Employment team on 0161 672 1425.