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17 June 2016

Pendleton v Derbyshire County Council

In Pendleton v Derbyshire County Council, the EAT considered a tribunal's approach to the identification of a provision, criterion or practice, group disadvantage and justification in a claim for indirect discrimination on the grounds of religion or belief. In particular, what level of repetition, if any, is required to establish a practice.

Facts

Ms P, a practicing Anglican Christian, was employed as a junior school teacher from September 2001 and held an exemplary record. Her husband was the headmaster of another local junior school which was part of the same group of schools which involved a degree of collaborative working between them.

In January 2013, Mr P was arrested on suspicion of downloading indecent images of children and voyeurism. It was established that there was no evidence that Ms P knew about her husband’s activities. Despite this, the head teacher of Ms P’s school advised that the school struggled to see how it could support her if she remained with him.

Ms P, in line with her religious belief that marriage vows are sacrament, decided to stay with her husband so long as he demonstrated unequivocal repentance. She did not condone or give the impression that she condoned his actions. Ms P continued to support her husband despite numerous warnings that there would be consequences if he was convicted of the offences. When Ms P asked if she was being invited to choose between her marriage vows and her career, she was met with shrugs and raised eyebrows.

A disciplinary investigation was undertaken by the head teacher, the charge was alleged gross misconduct. The school felt that there had been a breakdown of trust and confidence in Ms P’s ability to carry out safeguarding responsibilities as a teacher if she stayed with her husband. Ms P made it clear to the head teacher that she did not wish to leave the school and did not consider that she had done anything wrong.

Ms P was suspended and, following a disciplinary hearing, dismissed for having chosen to maintain a relationship with her husband which the panel believed had eroded her suitability to carry out the safeguarding responsibilities of her role.  Ms P brought tribunal proceedings including a claim for indirect religion or belief discrimination.

The Employment Tribunal

The Employment Tribunal held that the respondents had applied a provision, criterion or practice (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, given its finding that Ms P would have been dismissed irrespective of her belief in the sanctity of her marriage vow, there had been no group disadvantage.

Ms P appealed.

The Employment Appeal Tribunal

The EAT found there had been the application of a PCP. A response to highly unusual circumstances does not prevent that response from being the operation of a practice or policy. The respondents’ policy or practice had been to dismiss any employee who elected to stand by their spouse or partner in the circumstances that Ms Pendleton had faced.

The EAT then explained that the tribunal should have asked 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. The EAT concluded that they did face a disadvantage.

Comment

There are two points to take from this decision. Firstly, this case demonstrates how important it is to ensure the rationale behind disciplinary policies do not risk putting any employee at a disadvantage. The EAT were keen to remind the respondent that any policy they enforced could be considered a PCP. While they might not have applied that policy or practice previously, it was clear on the respondents’ evidence that this is how they would respond in similar circumstances. Therefore, policies which employers apply to a single employee should be considered applicable to all, and if that policy could put one group at a disadvantage in relation to another then it may be deemed discriminatory. It is evident that despite this being the first time the respondent had to consider these rare circumstances, their intention to apply it in the future established a practice beyond a single application.

If employers are ever in any doubt about the grounds on which they are dismissing an employee they should make sure to seek advice before taking action.

Secondly, the respondents were scrutinised for operating a ‘closed mind’ to Ms P’s circumstances by taking the view that there could be no alternative to dismissal. This lack of flexibility only weakened the respondent’s case, showing that their actions were a disproportionate means of achieving a legitimate aim (safeguarding the children in the school). So employers should ensure they have considered all options available before any disciplinary measures are taken.