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By Kate Hindmarch

Jul 15th, 2016

Discrimination on Grounds of Religion or Belief

In Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School, the Employment Appeal Tribunal (“EAT”) has recently considered whether the dismissal of a teacher, due to her decision to stand by her husband who was convicted of making indecent images of children and voyeurism; amounted to discrimination on grounds of religion or belief.

Background

The Claimant in this case was a teacher with an exemplary record of service. In January 2013, the Claimant’s husband was arrested, and subsequently convicted of making indecent images of children and voyeurism, and sentenced to ten months imprisonment. The Claimant did not know of her husband’s actions until he was arrested. However, the Headteacher indicated that the School would struggle to support her if she remained with her husband.

The Claimant was a committed and practising Anglican Christian and therefore held a strong belief in the sanctity of her marriage vows, and decided to stay married to her husband provided that she was satisfied he had demonstrated unequivocal repentance. The Claimant’s employer then dismissed her for gross misconduct. In particular the School confirmed that the reason for dismissal was that she had chosen to maintain a relationship with her husband, which they believed had eroded her suitability to carry out the safeguarding responsibilities of her role and that the choice she had made was in contravention to the ethos of the School.

The Claimant brought Tribunal proceedings against the School, including a claim for indirect religion or belief discrimination.

The Equality Act 2010 (the “Act”) provides that “religion” or “belief” (or lack of belief) is a protected characteristic. The Act also prohibits indirect discrimination, which occurs where an employer applies an apparently neutral provision, criterion or practice (“PCP”) but which puts or would put those who share a specific protected characteristic at a particular disadvantage.

The Tribunal’s Decision

The Employment Tribunal dismissed the claim. The Tribunal found that the Claimant did hold a belief which was that her marriage vow was sacrosanct, which was an expression of her religious faith. The Tribunal also held that the School had applied a PCP, namely a policy of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism. However, the Tribunal found that the Claimant would have been dismissed irrespective of her belief in the sanctity of her marriage, and therefore that there was no “group disadvantage” to those who shared her belief. The Claimant appealed, and the School also cross appealed.

The Case before the EAT

The School argued that the Tribunal was wrong to find that there had been a “policy” in place, and that there was no policy or practice which had been applied. The School maintained that they had found themselves in a unique situation, whereas a practice required an element of repetition.

However, the EAT held that a response to highly unusual circumstances does not prevent that response from being the operation of a practice or policy, however rare that may occur. The EAT found that the School’s policy or practice had been to dismiss any employee who elected to stand by their spouse or partner in those particular circumstances and that the Tribunal was entitled to find that this was how they would respond in such circumstances in future.

The EAT also overturned the Tribunal’s finding that the School’s policy or practice posted no particular disadvantage to those sharing the Claimant’s religious belief in the sanctity of marriage vows.  The EAT found that question was not whether the School’s practice placed anyone in a loving and committed relationship at a disadvantage, but whether it placed those who also held a religious belief in the sanctity of marriage, arising from the sacrosanct nature of vows made before God, at a particular disadvantage, because of the moral dilemma they would face.

In this case, the EAT held that the Claimant had suffered a particular disadvantage, as would others with this particular belief. The EAT therefore overturned the Tribunal’s decision and found that dismissing the Claimant because she remained with her husband due to her religious belief did amount to indirect discrimination and she had been unfairly dismissed.

Commentary

This case will obviously have ramifications for schools that face a similar situation. It will be difficult to balance the employee’s rights with the need for safeguarding in schools and retaining trust and confidence from the parents and pupils. It would undoubtedly be an uncomfortable situation if parents and pupils were to discover that the spouse of someone convicted of sexual criminal offences involving children was working at the school and remained married to the offender, but the rights of the employee also need to be considered and respected. 

It should also be noted that in this case, the EAT’s decision was made based on the particularly strong religious belief of the Claimant. Therefore, if the situation were to arise and there is no strong religious belief held, it may not amount to a protected characteristic.

Nevertheless, if, as an employer, you do find yourself in this situation, it would be prudent to look at alternatives to dismissal which may be in the band of reasonable responses. In this case, the school was a local authority school and had the recourses to be able to move the Claimant to another school, therefore redeployment could have been considered. By contrast, if the school were a small MAT or a stand alone academy then the Tribunals may take a different approach, as they may not have the same resources.

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