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Indirect Religion or Belief Discrimination
An issue that has recently been considered in the Employment Appeal Tribunal concerns whether or not the dismissal of a teacher for refusing to leave her husband who is a convicted sex offender amounted to discrimination on the grounds of religion or belief?
The Equality Act 2010 states that indirect religion or belief discrimination occurs where:
- A person (A) applies to another person (B) a provision, criterion or practice (PCP); B has a particular religion or belief (or lack of religion or belief); and A applies, or would apply, that PCP to persons not of the same religion or belief as B.
- The PCP puts or would put persons of B’s religion or belief, or lack of religion or belief, at a particular disadvantage when compared to other persons (group disadvantage); and the PCP puts, or would put, B at that disadvantage (individual disadvantage).
Employers are able to justify the application of a PCP if they can show that it is a proportionate means of achieving a legitimate aim.
In the case of Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School, Ms Pendleton was employed as a junior school teacher. She was highly respected and had a clean disciplinary record. She was also a practising Anglican Christian. Her husband was the Headmaster at a local junior school which formed part of the same group and Ms Pendleton’s work involved a degree of collaboration between them.
In January 2013, Ms Pendleton’s husband, Mr Pendleton, was arrested on suspicion of downloading indecent images of children and voyeurism. Mr Pendleton had used a hidden camera in his school to photograph children, and he was convicted and given a 10-month custodial sentence. Due to the initial shock, Ms Pendleton took a period of leave from work and the Headteacher assured her that her job would remain open.
Later in January 2013, a Lead Authority Designated Officer (“LADO”) meeting was convened, in which it was apparent that there was no evidence to suggest that Ms Pendleton had any involvement or knowledge of her husband’s actions. However, the Headteacher was recorded in the meeting as saying that the school struggled to see how it could support Ms Pendleton if she remained with her husband.
Ms Pendleton did not condone the actions of her husband, but she decided that she must follow her marriage vows, specifically her commitment in the presence of God, for better or worse, that she would stay with her husband as long as he showed unequivocal repentance.
In a subsequent LADO meeting in March 2013, the school’s Headteacher stated that it was not appropriate for an employee to return to a post if their partner had been convicted of offences of this type, and should Ms Pendleton have decided to leave her husband she would be supported by the school. However, he also stated that, if Ms Pendleton continued to support her husband, disciplinary procedures would be implemented.
In September 2013, Ms Pendleton was summarily dismissed for choosing to maintain a relationship with her husband, and she brought a claim before the Employment Tribunal for indirect religion or belief discrimination.
The Employment Tribunal initially dismissed the claim, stating that Ms Pendleton would have been dismissed irrespective of her belief in the sanctity of marriage vows, and therefore there had been no “group disadvantage”.
The EAT Decision
Ms Pendleton appealed, and the appeal was upheld. The EAT found that Ms Pendleton had been subjected to indirect religion or belief discrimination, and that the Employment Tribunal had failed to address the question of whether being forced to choose between their partner and their career might have given rise to a disadvantage for those who had the religious belief in the sanctity of marriage vows.
The EAT noted that, whilst it might be a difficult situation for for anyone in a loving and committed relationship (whether married or not) to make a decision between their relationship and their career, those who also had a religious belief in the sanctity of marriage faced a particular disadvantage in comparison.
What is the impact for employers?
The facts of this case are unusual and very specific; however, employers should err on the side of caution where the actions of an employee’s partner, spouse or family member are being brought into question and should be aware that there is no cap on the amount of compensation that can be awarded for a successful discrimination claim.
This does not mean that similar facts will always amount to indirect religion or belief discrimination, as an employer may be able to show that the treatment is a proportionate means of achieving a legitimate aim. However, the school was unable to illustrate this in this case.
Anthony Fox, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor