Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?
This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination)  UKEAT 0238 15 2903. The facts of this case were that the Claimant’s (Mrs Pendleton’s) husband was the headteacher of a local school. The Claimant herself was also a teacher employed at another local school where she was teaching a Year 6 class, had an unblemished disciplinary record and was highly respected both in school and also within the Anglican Christian community (being a devoted and practising Anglican Christian).
In January 2013 the Claimant’s husband was arrested on suspicion of downloading indecent images of children and voyeurism. He was later convicted of these offences and sentenced to ten months’ imprisonment.
The Claimant initially left her husband and went to stay with her parents, taking leave from work – at this point the headteacher of the school where she was employed assured her that her position would remain open for when she returned. Although there was no evidence that the Claimant had any knowledge or involvement in her husband’s actions, the headteacher had also stated that the school couldn’t support her if she stayed with her husband.
During her period of leave the Claimant decided that whilst she did not condone what her husband had done, she placed importance on her marriage vows and would therefore stay with him if he could show unequivocal repentance.
The school subsequently dismissed the Claimant summarily, stating that she had “… chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role … have been eroded. Furthermore, the choices [she had] made in [her] personal life are in direct contravention to the ethos of … the … School”.
The Claimant’s appeal against her dismissal was unsuccessful and she therefore brought claims of unfair dismissal, wrongful dismissal and indirect religious discrimination against the Respondent based upon her religious beliefs as noted above.
The Employment Tribunal agreed with the Claimant’s submission that she had been unfairly dismissed, stating that the reason for her dismissal was not some other substantial reason (SOSR) – she had not committed an act of misconduct let alone gross misconduct – but rather the Respondent’s view that the Claimant had used poor judgment in staying with her husband despite him being a convicted sex offender. The Claimant’s claim of wrongful dismissal also succeeded in light of the above.
With regards the indirect discrimination claim however, the Tribunal noted that the claimant held a belief for the purposes of section 10(2) Equality Act 2010, that: “her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith”. The Tribunal further accepted that the Respondent had applied a provision, criterion or practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, however concluded that the Claimant would have been dismissed whether she believed in the sanctity of marriage or not as another individual in the same situation would have also been dismissed, even if they did not share the Claimant’s religious belief. The tribunal did comment however that had they needed to consider the question of proportionality, they would have found that the Respondent did not show that the dismissal was a proportionate means of achieving a legitimate aim.
The Claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that making her choose between her marriage vows and her career was enough to show she had been placed at a disadvantage, especially given she had been required to act against her religious beliefs.
The question to be considered by the EAT was therefore whether the school’s policy of dismissing any employee who decided to stand by their partner in such circumstances, put the Claimant at a particular disadvantage.
It was held that the Claimant’s appeal would be allowed on the basis that the Claimant was put at a particular disadvantage by the Respondent’s practice of dismissing individuals in her situation and that there was no justification for the dismissal. The EAT further commented that those sharing the Claimant’s belief would be placed at a particular disadvantage given the crisis of conscience and additional dilemma that they would have to deal with in making this choice. There was therefore a particular disadvantage to the Claimant and the indirect discrimination claim would succeed on this basis.