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In Pendleton v Derbyshire County Council and the Governing Body of Glebe Junior School, the Employment Appeal Tribunal (EAT) held that dismissing an Anglican Christian teacher for standing by her husband after his conviction for downloading indecent images of children and voyeurism was indirect religious discrimination under the Equality Act 2010.
Mrs Pendleton was a junior school teacher at Glebe Junior School (the school). Her husband was arrested for voyeurism and downloading indecent images of children. Mrs Pendleton, an Anglican Christian, decided to stay with her husband, provided her demonstrated unequivocal repentance. She maintained that this was consistent with her marriage vows made in the presence of God to stay with her husband 'for better or worse'.
At a meeting with the Local Authority Designated Officer (LADO) in January 2013, the Headteacher of the school commented that it would be difficult to support Mrs Pendleton if she remained with her husband. In March 2013, a decision was taken at a further LADO meeting that Mrs Pendleton could not return to her job if her husband was convicted and she remained supportive of him. She was subsequently warned that there would be consequences if she stayed with her husband.
When her husband was convicted, Mrs Pendleton was suspended from duty. A disciplinary procedure was commenced, with the primary concern being Mrs Pendleton's ability to carry out her safeguarding responsibilities if she remained with her husband.
Mrs Pendleton believed that she did not present a risk to children as she had done nothing wrong and there were no existing safeguarding concerns about her.
Following a disciplinary hearing, Mrs Pendleton was dismissed without notice. It was found that her decision to stay with her husband had destroyed the school's trust and confidence in her ability to carry out safeguarding duties in the future and was in direct contravention of the school's ethos.
Her internal appeal was dismissed and she brought claims for unfair dismissal, wrongful dismissal and indirect discrimination on the grounds of religion or belief.
The Employment Tribunal (ET)
The ET upheld her claim of unfair dismissal on the basis that:
the school had not been able to establish a potentially fair reason for dismissal;
the decision to dismiss her was predetermined (as evidenced by actions and comments made prior to the commencement of the disciplinary process);
there had been inadequate investigation;
there had been a failure to consider mitigation or alternatives to dismissal; and
the decision to dismiss was too harsh in the circumstances.
Her wrongful dismissal claim also succeeded.
The claim for indirect religion or belief discrimination was, however, rejected. While the ET held it was satisfied that the school had applied a provision, criterion or practice (PCP) to Mrs Pendleton (a practice of dismissing those who choose not to end a relationship with a person convicted of child protection offences), it found that this did not place Mrs Pendleton (or those sharing her beliefs) at a disadvantage compared to those who did not share her beliefs.
It found that anyone deciding not to end a relationship in those circumstances would have been dismissed irrespective of their religion or belief. The essential element of ;group disadvantage' was therefore missing.
On appeal, the EAT confirmed that the way the dismissal had been conducted demonstrated a PCP which the school would have applied to anyone in the same circumstances. It then went on to overturn the ET's decision that there was no 'group disadvantage'.
The EAT considered that, while anyone in a loving committed relationship would have suffered a disadvantage as a result of the application of this practice, those who shared Mrs Pendleton's beliefs would suffer a greater disadvantage. It held that Mrs Pendleton had therefore suffered indirect discrimination on the grounds of her religious beliefs.
Such cases put employers who have a responsibility to safeguard and promote the welfare of children in a difficult position. Safeguarding children must always be of paramount importance and employers will not only want to fulfil their duties in this regard, but be seen to be doing so. Making staff aware of expectations as to conduct, particularly with regard to vulnerable groups such as children, is an important aspect of this duty.
However, employers must nonetheless approach all disciplinary matters with an open mind and judge each case on its particular facts. In particular, employers must avoid conduct or comments (whether verbal or written) which could be interpreted as pre-judgment before internal processes have been completed. In this regard, employers should be mindful that comments made in confidential forums such as LADO meetings are likely to be disclosable in any future litigation.
Employers must also be mindful of any protected characteristic that an employee gives as an explanation for their actions and must factor this into the conduct of internal procedures. It is important to consider whether the way in which a disciplinary process is conducted could establish a practice which disadvantages a particular group of people on the grounds of a protected characteristic. Judging each case on its individual merits may help to avoid such outcomes.