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Dismissing teacher for standing by sex offender husband amounts to indirect religious discrimination

KB
BY Kirstie Beattie
Employment law
BG Purple

Indirect religious discrimination was found in a case where a teacher decided to stay with her husband, a headmaster of another local school, after he was convicted for downloading indecent images of children and voyeurism. In the recent EAT case of Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School the claimant, a practising Anglican Christian, was dismissed as her employer considered that her decision to remain with her husband made her unsuitable to be a teacher.  

Indirect religious discrimination was found in a case where a teacher decided to stay with her husband, a headmaster of another local school, after he was convicted for downloading indecent images of children and voyeurism. In the recent EAT case of Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School the claimant, a practising Anglican Christian, was dismissed as her employer considered that her decision to remain with her husband made her unsuitable to be a teacher.  Ms Pendleton chose to stay with her husband as long as she was satisfied that he had demonstrated unequivocal repentance as this was consistent with her marriage vows.

Conduct amounts to indirect discrimination if, as per section 19 of the Equality Act 2010, A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. When determining the case the EAT held that a response to highly unusual circumstances can amount to the operation of a practice or policy. In Ms Pendleton’s case, this policy or practice had been the decision to dismiss any employee who chose to stand by their partner or spouse in the circumstances faced by the claimant. Despite the fact the respondents had not applied this particular policy or practice in the past, there was enough evidence to conclude that this is how they would have responded in such circumstances. The EAT held that the right question to ask in such circumstances is whether a particular disadvantage may arise for those with a religious belief in the sanctity of marriage vows where an individual is forced to choose between their career and their partner.

This case highlights the circumstances in which the ET may consider that a one-off decision may amount to a provision, criterion or practice. In addition to this, it also demonstrates the significance of correctly identifying the comparator groups for the purposes of identifying whether there was a group disadvantage: it was held that those sharing Ms Pendleton’s belief would suffer a particular disadvantage given the crisis of conscience they would face. 

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