In the case of Pendleton v Derbyshire v County Council, a teacher who was dismissed for remaining with her husband following his conviction of voyeurism and making of indecent images of children successfully appealed a tribunal’s decision to reject her claim for indirect religious discrimination. 

Mrs Pendleton was dismissed from her teaching post after she chose to remain with her husband following his conviction.  The decision was taken despite her unblemished disciplinary record and in the absence of any suggestion that she knew about her husband’s activities before his arrest.  Aggrieved, Mrs Pendleton brought claims for unfair dismissal, wrongful dismissal and indirect religious discrimination.

In its defence, the School sought to argue that Mrs Pendleton had been dismissed because of her conduct or some other substantial reason.  However, the tribunal held that the real reason was the School’s view that she had exercised poor judgment in standing by her husband notwithstanding the fact that he was a convicted sex offender.  Therefore, her claims of unfair and wrongful dismissal succeeded.

The decision was taken despite her unblemished disciplinary record and in the absence of any suggestion that she knew about her husband’s activities before his arrest.

In bringing her claim of indirect religious discrimination, Mrs Pendleton, a practising Anglican Christian, argued that her marriage vow was sacrosanct, having been made to God and was an expression of her religious faith.  The tribunal accepted that this qualified as a religious belief under the Equality Act 2010 and that the School had applied a provision, criterion or practice (i.e. a policy of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism).  However, it held that Mrs Pendleton had not been able to establish a particular group disadvantage (which is an important requirement of the test of indirect discrimination) as it considered that she would have been dismissed regardless of whether she held a belief in the sanctity of her marriage vows.  Therefore, her claim failed.

Mrs Pendleton successfully appealed the tribunal’s decision.  The Employment Appeal Tribunal (EAT) held that the tribunal had taken the wrong approach to the group comparison exercise because it failed to ask the right question.  It found that the tribunal had focused on the disadvantage of the dismissal and did not ask whether the election itself (namely the choice of remaining with your husband or your career) might have given rise to a particular disadvantage, all other things being equal, for those with a religious belief in the sanctity of marriage vows.  The EAT held that those sharing Mrs Pendleton’s religious belief would have an additional burden/particular disadvantage and her claim of indirect religious discrimination was therefore upheld.

Whilst unusual on its facts, the case serves as a reminder of the need to be able to show a group disadvantage in indirect discrimination claims.