Indirect religious discrimination occurs where:
- A applies to B a ‘provision, criterion or practice’ (PCP);
- B has a particular religion/belief, or lack thereof;
- A applies, or would apply, that PCP to persons not of the same religion or belief as B;
- The PCP puts/would put persons of B’s religion/belief at a particular disadvantage when compared to others; (‘group disadvantage’)
- The PCP puts or would put B at that disadvantage; (‘individual disadvantage’)
- A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
In a recent case of Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School, the Employment Tribunal had to consider whether the dismissal of a teacher who remained with her husband following a conviction for child pornographic offences amounted to indirect religious discrimination.
Mrs Pendleton was a teacher at Glebe Junior School and also a practicing Christian. Her husband (also a teacher) was arrested for ‘voyeurism’ (installing a camera in his school changing rooms) and downloading indecent images of children. Mrs Pendleton decided to stay with her husband, provided he demonstrated unequivocal repentance, as she wanted to honour her marriage vows to stay with him ‘for better or worse’. There was no suggestion that she had known about any of these activities.
The school sought to argue that Mrs Pendleton should be dismissed due to her conduct or ‘some other substantial reason’ i.e. the erosion of trust and confidence in her ability to carry out safeguarding responsibilities as a teacher if she stayed with her husband. They claimed this was in direct contravention of the school’s ethos. They therefore commenced disciplinary proceedings and several months later, after her husband had been convicted, she was summarily dismissed as a result of her decision to stay with her husband.
Mrs Pendleton brought claims for unfair dismissal, wrongful dismissal and indirect religious discrimination. The Tribunal concluded that the real reason for Mrs Pendleton’s dismissal was that she chose to stay with her husband despite the fact that he was a convicted sex offender and this which was poor judgement. This did not relate to Mrs Pendleton’s conduct and this was not a substantial reason to justify dismissal. The Tribunal also found that the decision had been predetermined and the investigation had been inadequate. The dismissal was therefore unfair and as Mrs Pendleton had not been guilty of any misconduct the claim of wrongful dismissal also succeeded. In bringing her claim for indirect religious discrimination, she argued that her marriage vow was sacrosanct, having been made to God and was an expression of her religious faith. The Tribunal accepted that this qualified as a ‘religious belief’ under the Equality Act 2010 and that the school had applied a PCP (i.e. a policy of dismissing those who chose not to end a relationship with a person convicted of child pornographic offences). However, it also held that there was no particular ‘group disadvantage’ as it considered she would have been dismissed regardless of her particular religious beliefs. The indirect discrimination claim therefore failed and Mrs Pendleton appealed the decision to the Employment Appeal Tribunal (EAT).
The EAT held that there was a particular group disadvantage – for those with a religious belief in the sanctity of a marriage vow. Although anyone in a committed relationship would face a difficult decision regarding what to do in Mrs Pendleton’s situation, those who held that religious belief would face a particular disadvantage. It was therefore held that Mrs Pendleton had suffered indirect discrimination on the grounds of her religious beliefs.
Despite the unusual facts in this case, it serves as a helpful reminder for employers to do a number of things. All employers – big and small – should be mindful of any protected characteristics that an employee may give as an explanation for a certain course of action, and this must be factored into any internal procedures. It was also open to the school to argue that their actions, (even if they were indirectly discriminatory), were justified as it was a proportionate means of achieving a legitimate aim. However, the school failed to produce any evidence on this point to show that such a dismissal was a proportionate means of achieving a legitimate aim. For any other queries regarding discrimination or unfair dismissal, please contact a member of the Devonshires Employment Team.