Labour & European Law Review Weekly Issue 477 06 July 2016
It is indirect discrimination to apply a provision, criterion or practice (PCP) in relation to a protected characteristic which puts a worker at a “particular disadvantage” when compared with someone who does not share that characteristic. In Pendleton v Derbyshire County Council the Employment Appeal Tribunal (EAT) held that it was indirect religious discrimination for the school to apply a PCP of dismissing teachers for not leaving their spouse after a sex offence conviction.
Ms Pendleton, a highly respected teacher with an unblemished disciplinary record, worked in the same cluster of schools as her husband in South Normanton, a relatively close knit community. In January 2013 he was arrested and later convicted of making indecent images of children. Ms Pendleton initially left her husband, but subsequently decided to return, having satisfied herself that he was truly sorry for what he had done. This, she said, was consistent with her beliefs as a practicing Christian and the marriage vows she had taken in the presence of God to stay with her husband, for better or worse.
However, in April 2013 at a meeting with officials at County Hall, she was told that if she stayed with her husband, there “would be consequences”. She was subsequently disciplined and summarily dismissed for gross misconduct on the basis that her decision to stay could be seen as condoning his behaviour and that she was no longer suitable to carry out her safeguarding responsibilities.
She brought claims of unfair dismissal and religious discrimination.
In response to the complaint of unfair dismissal, the county council argued that the reason for the dismissal was conduct or some other substantial reason. The tribunal, however, concluded the real reason was that she had exercised poor judgement in electing to stand by her husband. This, said the tribunal, could not justify dismissal and did not relate to her conduct. Even if that were not correct, the dismissal was unfair.
Although the tribunal accepted that the school had applied a PCP (dismissing people who choose not to end a relationship with someone convicted of making indecent images of children), it dismissed her discrimination claim on the basis that anyone who had decided to stay with their spouse in those circumstances would have “met with the same unfortunate fate.”
Ms Pendleton appealed against the discrimination decision and the council appealed against the unfair dismissal decision.
Upholding her appeal, the EAT held that the tribunal made a mistake when it decided that the PCP applied equally to the two groups being compared. That is, those sharing Ms Pendleton’s protected characteristic as compared to those who did not but to whom the PCP would also be applied. The task for the tribunal was not to pick out particular individuals who might fall into either group but to consider whether 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.
Having found that Ms Pendleton held the belief that her marriage vows were an expression of her religious faith, the tribunal should logically have found that the members of the group sharing that belief inevitably faced an additional dilemma of conscience. There was therefore only one answer to the disadvantage question: the PCP identified was intrinsically liable to disadvantage a group sharing Ms Pendleton’s belief. As the PCP could not be justified, the EAT set aside the tribunal’s decision. It also dismissed the council’s cross appeal that the dismissal was unfair.