The recent and unusual case of Pendleton v Derbyshire County Council and Another UKEAT/0238/15/LA has given rise to controversial discussions surrounding the topic of religion in the work place.
In this case Mrs Pendleton, the wife of a former head teacher convicted of possessing indecent images of pupils and voyeurism, contrary to popular views decided to remain married to her husband. Ms Pendleton, a teacher with a commendable record of service, had decided against leaving her husband given the fact that she was a practising Angelican Christian whose marriage vows were of the utmost importance. The school failed to see how, despite the fact that she did not overlook her husband’s actions, she could comply with her safeguarding responsibilities as a teacher if she remained married to her husband. The position was also considered to be contrary to the school’s ethos and resulted in her dismissal.
Ms Pendleton was successful in her unfair dismissal claim; however at the Tribunal her claim for indirect religion or belief discrimination was dismissed. This was because the school had chosen to apply a provision, criterion or practice (PCP) which was to dismiss those who chose not to end a relationship in these circumstances but Ms Pendleton had failed to demonstrate a particular disadvantage. The school had argued that she would have been dismissed irrespective of the fact that she had a genuine belief that marriage vows were revered. Ms Pendleton appealed.
The Employment Appeal Tribunal (EAT) found evidence of indirect discrimination, due to the fact that the PCP used by the school would likely disadvantage those sharing the same or similar beliefs as Ms Pendleton. It has held that her belief placed her under an added burden when compared to someone who might have been in the same situation but did not hold that belief. Her appeal was successful.
This case brings into sharp focus the difficulties facing employees in respect of indirect discrimination. The impact of a policy adopted by an employer should be considered to ascertain whether that policy may adversely impact upon a particular group or individual because of their religion or belief or another of the ‘protected characteristics’ under the Equality Act 2010. An employer should consider any such impact and may be required to justify its policy as a proportionate means of achieving a legitimate aim.
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