Dismissal for Refusing to Leave Husband was Religious Discrimination
An employer discriminated against a teacher on grounds of religion when it dismissed her because she refused to leave her husband who had been convicted of sex offences.
An employer indirectly discriminated against a teacher on grounds of religion when it dismissed her because she refused to leave her husband who had been convicted of sex offences. Leaving her husband went against her Christian belief that her marriage vows were sacrosanct. Given the crisis of conscience they faced, the teacher and people sharing her belief were put a particular disadvantage by the employer’s policy of dismissing anyone who refused to end a relationship with a convicted sex offender. The employer had failed to justify its policy.
In Pendleton v Derbyshire County Council and another, Ms Pendleton was a primary school teacher with an exemplary disciplinary record. She is a committed practising Christian. Her husband was convicted of downloading indecent images of children and voyeurism. There was no suggestion that she knew of these matters before her husband’s arrest. The school made it clear that it could not continue to employ her if she stayed with her husband. Following a disciplinary hearing, she was dismissed. The school considered she was no longer suitable for her safeguarding responsibilities.
She claimed indirect religious discrimination, arguing that the school’s policy of dismissing someone who had chosen not to end a relationship with a convicted sex offender put her and others who shared her belief (that marriage vows are sacrosanct) at a particular disadvantage. The employment tribunal rejected her claim, finding that unmarried people in a long-term loving relationship who exercised the same choice as Ms Pendleton were just as likely to be dismissed. The school’s policy did not therefore place Ms Pendleton (and those with whom she shared her religious belief) at any greater disadvantage than others who did not share her belief. However, the tribunal noted that if Ms Pendleton had in fact been disadvantaged, the employer had failed to show that dismissal was a proportionate means of achieving a legitimate aim.
Ms Pendleton appealed.
The Employment Appeal Tribunal (EAT) overturned the employment tribunal’s decision. The employment tribunal had taken the wrong approach to the issue of comparative disadvantage. It should have considered the potential groups – those in long-term loving relationships who shared Miss Pendleton’s belief and those in such a relationship who did not - and asked whether those who shared her religious belief faced a particular disadvantage. Had it done so, it would inevitably have concluded that Ms Pendleton and people sharing her belief were put a particular disadvantage, given the crisis of conscience they faced.
The EAT went on to decide that the employer had not justified its policy. Whilst the safeguarding of children at school was a legitimate aim, the employment tribunal had found that the employer had not considered any alternatives to dismissal and had not adduced any evidence that its actions were proportionate.
Employers need to consider whether any of their policies are likely to disadvantage employees holding a particular belief, and be prepared to justify any that do. Ms Pendleton had no after-school responsibilities and no other extra-curricular contact with pupils. In the circumstances there were no real safeguarding concerns to justify her dismissal based on her husband’s unlawful acts.
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