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Requirement imposed on employee to break up with sex offender husband was religious discrimination

08 June 2016

The case of Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School has recently been considered by the Employment Appeal Tribunal (EAT).

Mrs Pendleton was a junior school teacher, and was also a practising Christian. Her husband was the headmaster of another junior school within the same “cluster” of schools. He was arrested on suspicion of downloading indecent images of children and voyeurism which had allegedly taken place at his school. There was no evidence that Mrs Pendleton knew anything of her husband’s activities. However, she was advised by her headteacher that the school would struggle to support her if she remained with her husband.

Mrs Pendleton decided to stay with her husband as she viewed her marriage vows as sacrosanct, that she committed to her husband in the presence of God. The school found that it would be inappropriate for Mrs Pendleton to return if her husband was convicted and she continued to support him. The school informed her of this, and that a number of parents had written in to state their concern, although no evidence was presented to support this.

The school carried out a disciplinary investigation with a potential charge of gross misconduct and on the basis of an erosion of trust and confidence in Mrs Pendleton’s ability to carry out safeguarding responsibilities if she stayed with her husband.

Mr Pendleton was eventually convicted and sentenced to a jail term. The following month Mrs Pendleton was suspended. The HR Director of the Council confirmed that so long as Mrs Pendleton stood by her husband it considered her unsuitable to be a teacher following a disciplinary hearing. Mrs Pendleton was summarily dismissed for maintaining her relationship with her husband which the panel considered had eroded her suitability for her role.

She brought claims in the Employment Tribunal, including a claim for indirect religion or belief discrimination.

The Employment Tribunal dismissed Mrs Pendleton’s claim. Whilst it found that Mrs Pendleton held a belief that her marriage vow was sacred, once the school had applied a provision, criterion or practice (PCP) of dismissing those who chose not to end a relationship with a sex offender, the Employment Tribunal decided that Mrs Pendleton would have been dismissed even if her belief in her marriage vows was disregarded, and so individuals who held her beliefs were not at a group disadvantage.

Mrs Pendleton appealed.

EAT’s finding

The EAT held that there had been indirect discrimination. The school had argued that there was no PCP of dismissing an individual who stood by a sex offender. The EAT found that, whilst the school had not applied that PCP previously, the Tribunal had been entitled to find that is how they would have responded in such circumstances.

The EAT also held that the Tribunal should have asked whether an employee being forced to choose between the partner or career might have given rise to a particular disadvantage for those with a religious belief in marriage vows. The EAT considered that all persons in a long-term relationship forced to choose between their partner and career would be disadvantaged, whether or not they shared Mrs Pendleton’s beliefs. However, the question was whether there was a particular disadvantage suffered where an individual believed in the sacrosanct nature of marriage vows. The EAT found there was, and as a result Mrs Pendleton had been subjected to indirect discrimination on the grounds of her religion or belief.

Comment

This case serves to demonstrate that even where an employer acts on a “one off” basis following a relatively unusual set of circumstances, that could still form a provision, criterion or practice if the employer would act in the same way if the same or similar circumstances arose in the future.

It also serves as a warning to employers to consider whether an employee’s actions are as a result of a particular religion or belief when conducting disciplinary investigations.