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Indirect discrimination and marriage

The Employment Appeal Tribunal (EAT) has handed down its judgment in Pendleton v Derbyshire County Council in relation to whether it was indirect religious discrimination to dismiss a teacher who did not end her marriage once her husband had been convicted for sex offences.

Misconduct

Mrs Pendleton had been employed by Derbyshire County Council for many years as a teacher and faced no allegations of misconduct. However, her husband was convicted of making indecent images of children and voyeurism. The council dismissed Mrs Pendleton because she did not leave her husband as a result of his conviction. Mrs Pendleton was successful in bringing an unfair dismissal claim because the council had failed to show that her dismissal was for a potentially fair reason, such as gross misconduct or some other substantial reason.

Mrs Pendleton was a Christian and her faith meant her marriage vows were sacred, thus she did not wish to end her relationship with her husband. She brought a claim to the Employment Tribunal (ET), alleging that to dismiss individuals who did not choose to end a relationship with a convicted sex offender was indirect religious discrimination. The tribunal rejected this claim.

The EAT, however, upheld Mrs Pendleton’s appeal and concluded that she had been subjected to indirect religious discrimination. In arriving at this decision, the EAT found that Mrs Pendleton would be in a group of individuals who all deem their marriage vows to be sacred as they were made to God and it would be these people who are placed at a particular disadvantage by the council dismissing such individuals for not ending their marriages once their spouses had been convicted of sex offences. Further, the EAT held that there was no justification for the dismissal. This had become a practice and because of the particular disadvantage, there was unlawful discrimination. It is important to note that there was no suggestion that Mrs Pendleton was involved in any offences and there was no indication that she had knowledge of her husband’s conduct.

Protected characteristics

Indirect discrimination is not a straightforward area of law. However, what is clear is that employers need to become fully aware of indirect discrimination and how decisions relating to this can impact on their organisations. Applying a blanket policy to all staff will often have the potential to place staff with certain protected characteristics – such as religion or belief, race, sex or age – at a disadvantage. Consequently, disciplinary policies need to be reviewed to ensure that they do not place a group of people at a particular disadvantage. Further, an employer needs to make certain that there is a sufficiently serious reason to dismiss an employee, otherwise they may face discrimination claims brought against them.

This judgment serves as a reminder that employers should not treat employees differently because of their associations with individuals who bring their own character into disrepute.

Disciplinary procedure

The case also highlights that an employer needs to take proportionate action in achieving the legitimate aim by considering the alternatives to dismissal. Indirect discrimination may be justified in order for a business to operate effectively but an employer should not ‘automatically’ dismiss without giving due consideration to other possible options. An employer’s flexibility in considering options balanced against adopting a rigid disciplinary procedure will enable employers to protect themselves, should an employee wish to bring a discrimination claim. If an employer is unsure whether the practices they adopt fall foul of disadvantaging a group of people or if an employer is unsure whether they have a valid reason for dismissal, legal advice should be sought.

For more information about any of the issues raised in this article or about discrimination or employment law matters in general, please contact by Fawziyah Javed by emailing fjaved@lyonsdavidson.co.uk or calling 0113 368 7825.

 

Posted on Sep 20th, 2016 by Lyons Davidson