May a worker be sacked for refusing to leave a spouse or partner convicted of unrelated criminal conduct to which the dismissed worker was not a party? That was precisely the issue in Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination)  UKEAT 0238 15 2903.
In short, Mrs Pendleton’s husband was headteacher of a local school. He was convicted of making indecent images of children and voyeurism and sentenced to ten months’ imprisonment. Though she had an exemplary disciplinary record and record of service, Mrs Pendleton was dismissed from her teaching post at another local school after she elected to remain with her husband after his conviction, even though no-one suggested that she had known of his activities prior to his arrest in January 2013.
After her husband’s arrest, Mrs Pendleton left the marital home to stay with her parents and took leave from work, with an initial assurance from her headteacher, Mrs Seymour, that her job would remain open [1-3]. On 25 January 2013, a Lead Authority Designated Officer meeting confirmed there was no evidence that she had had known anything about the matters for which her husband had been arrested ; she then went on sick leave and her CRB certificate was re-issued with no difficulties . Meanwhile, while not condoning her husband’s actions, she decided that, consistent with her marriage vows “for better or for worse”, she would stay her husband provided she was satisfied that he had demonstrated unequivocal repentance.
Subsequently, however, at a further Lead Authority Designated Officer meeting on 18 March 2013 it was recorded that:
“The situation will be made very clear to [the Claimant] in terms of her employment and the challenges that might be ahead for her. This will hopefully help [the Claimant] make an informed decision on her future … Management will be taking a clear line that it is not appropriate to return to post if an employee’s partner has been convicted of offences and they continue to support them but should she decide to leave [her husband] she would be supported” [6 & ET Reasons 3.18].
Mrs Seymour, the headteacher, was recorded as stating that she was:
“… concerned that should [the claimant] continue to support [her husband] her actions could be seen as condoning his behaviour. If [the claimant] decides to continue to support [her husband] disciplinary procedures will be implemented” [7 & ET Reasons 3.18].
At a meeting on 19 April at County Hall, the claimant confirmed that she intended to stay with her husband in accordance with her marriage vows. Disciplinary action was set in train, Mrs Seymour was the investigating officer, and the claimant was charged with potential gross misconduct:
“The extent to which the trust and confidence, which others would have in your ability to carry out safeguarding responsibilities of your role as Teacher … would be eroded whilst maintaining a relationship with your husband” [8 & ET Reasons 3.22].
On 20 August, the claimant was suspended  and at a subsequent disciplinary hearing was summarily dismissed because 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” [12 & ET Reasons 3.28].
She appealed unsuccessfully .
The ET’s conclusions and reasoning
In response to the complaint of unfair dismissal, the respondents contended that the reason for the dismissal was conduct or some other substantial reason (“SOSR”). The ET concluded, however, that the real reason for her dismissal was the respondents’ view that she had exercised poor judgment in electing to stand by her husband despite the fact that he was a convicted sex offender. That was not a substantial reason of a kind such as to justify dismissal and did not relate to the claimant’s conduct; the Respondents had failed to discharge the burden of proving a potentially fair reason. Even if that were not correct, the dismissal was unfair for the purposes of s 98(4) of the Employment Rights Act 1996:
- the decision had been predetermined;
- the investigation had been “woefully inadequate”; and
- the disciplinary and appeal panels had failed to exercise independent judgment, merely endorsing the decisions made by Mrs Seymour and the local authority.
The decision to dismiss was wholly unreasonable and the unfair dismissal claim therefore succeeded; and because the claimant had not been guilty of misconduct, the complaint of wrongful dismissal also succeeded .
As to indirect discrimination, the ET accepted that the claimant held a belief for the purposes of s 10(2) of the Equality Act 2010: “that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith”. It accepted that the respondents had applied a provision, criterion or practice (“PCP”) of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism. The ET considered, however, that the claimant would have been dismissed whether or not she had believed in the sanctity of her marriage vows because anyone else in the same circumstances would have met with the same unfortunate fate; and those who shared the claimant’s religious convictions were at no greater or lesser risk of dismissal than those who simply exercised their choice to stand by their partner or husband . The ET concluded that the claimant had failed to make out her complaint of indirect discrimination  but that, had it been necessary to consider the question of proportionality, it would have found that the respondents had failed to show the dismissal was a proportionate means of achieving a legitimate aim .
The appeal and the claimant’s submissions
The claimant raised two main objections to the ET’s rejection of the indirect discrimination case:
- that it had confused the neutral application of the PCP with its impact; and
- that it had failed to apply the principle that a PCP applying equally to believers and non-believers might particularly disadvantage believers because the required conduct was contrary to their religious beliefs: a PCP that required a religious believer to act contrary to conscience would satisfy the particular disadvantage test .
The respondents knew that the claimant was a practising Anglican; and it was contended that putting her in a position where she might have to act contrary to her religious beliefs was sufficient to amount to a disadvantage contrary to paragraph 4.10 of the Equality & Human Rights Commission’s Code of Practice  [which states that “Sometimes, a provision, criterion or practice is intrinsically liable to disadvantage a group with a particular protected characteristic”].
The cross-appeal and the respondent’s submissions
The respondents resisted the appeal, relying on the ET’s reasoning, but further cross-appealing the ET’s findings on PCP and on justification. They contended that the ET had properly directed itself in accordance with s 19 Equality Act 2010 and had undertaken the relevant comparative exercise. As the ET had found, both those who believed in the sanctity of the marriage vow and those in committed relationships who did not would have faced the same choice between their career and their spouse or partner and both would face the same disadvantage . On the cross-appeal, the ET had been wrong to find that the PCP was a “policy” and had erred in law in failing to determine whether the claimant had established that the respondents had engaged in a “practice”, as pleaded . Moreover, they would have treated anybody else in the same way, whether married, unmarried but living with someone as a partner, or simply cohabiting but supporting someone with convictions for sexual offences against children .
HHJ Eady QC allowed the appeal and set aside the ET’s dismissal of the indirect belief discrimination claim, substituting a finding that it was allowed. She dismissed the cross-appeal.
On the policy/practice point, “policy” was not a term used by s 19 Equality Act 2010; however, she considered that “policy” was capable of comprehending a “practice” for these purposes and there was no prejudice to the respondents from the identification of a practice in that way . The ET was entitled to conclude (given the respondents’ own evidence) that the respondents’ policy or practice was to dismiss any employee who elected to stand by his or her spouse or partner in the circumstances that had faced the claimant . So the ET had made a permissible finding that the respondents were adopting and applying a policy or practice that they would apply again should the circumstances arise .
On the question of disadvantage under s 19 Equality Act 2010, though the ET had erred in its approach to that issue she was satisfied that she should not remit the matter to the ET for reconsideration because:
“… there is, in truth, only one answer. Comparing two groups, both comprising individuals in long-term, loving and committed relationships, facing the same difficult circumstances as arose in this case and given the choice between remaining with their husband/partner or their career but with one group also holding a religious belief in the sanctity of their marriage vows, I conclude the ET was bound to hold that the latter had an additional burden; a particular disadvantage. This was one of those cases (recognised by the ECHR Code of Practice) where the PCP was intrinsically liable to disadvantage a group with a particular protected characteristic” .
As to the question of justification, the reality was that there was no evidence before the ET to show that dismissal was a proportionate means of achieving the legitimate aim identified .
Appeal allowed on the indirect belief discrimination claim: cross-appeal dismissed.
[With thanks to Paul de Mello Jr for alerting me to the case]