When a teacher with a long and exemplary record was dismissed for refusing to leave her husband following his conviction for making indecent images of children and voyeurism, could the decision amount to indirect religious discrimination if her Christian faith meant that she regarded her marriage vows as sacrosanct?
Pendleton v (1) Derbyshire County Council (2) Governing Body of Glebe Junior School
Mrs Pendleton is a qualified teacher who was employed at Glebe Junior School from September 2001 until she was dismissed in 2013. At the date of her dismissal she was responsible for teaching a Year 6 class (10-11 year olds). She had an unblemished disciplinary record, was highly respected and regarded by students, colleagues and parents. She is also a committed and practising Anglican Christian.
In March 2002 she married Matthew Pendleton, a Head Teacher at a nearby junior school that was part of the same cluster group as Glebe Junior School and meant a degree of partnership working between the two schools which were situated in a close-knit community. In January 2013 Mr Pendleton was arrested on suspicion of downloading indecent images of children and voyeurism. He was later charged and convicted of those offences and sentenced to a 10 month term of imprisonment for which he served half of the sentence. Unsurprisingly the fact of his arrest and conviction gave rise to rumour and gossip in the local community. It was described as being a “bolt from the blue” for Mrs Pendleton; she was said to be shocked and distressed and in the immediate aftermath of the arrest she left her marital home to stay with her parents, taking a period of leave from work. She was initially reassured by the head teacher of Glebe Junior School that her job would remain open. It was accepted that there was no evidence that she had any knowledge or involvement in the matters for which her husband had been arrested. However, despite her earlier assurances the Head Teacher was recorded as saying that the school struggled to see how it could support her if she remained with her husband. She went on sick leave from 23 January 2013 and whilst she did not condone her husband’s actions she decided – consistent with her marriage vows – that she would stay with her husband as long as she was satisfied that he demonstrated unequivocal repentance.
At a subsequent meeting it was made clear that it would not be appropriate for an employee to return to post if a partner had been convicted of such offences and they continued to support them, but if she decided to leave her husband then she would be supported. She was asked to confirm if she intended to stay with her husband and it was stated that if she did then there would be consequences. When she asked the Governing Body if she was being asked to choose between her marriage vows and her career she was “met with shrugs and raised eyebrows”. Given her decision, disciplinary action followed and an allegation of gross misconduct was made which was framed as follows:-
“The extent to which the trust and confidence which others would have in your ability to carry out safeguarding responsibilities as your role as a teacher … would be eroded whilst maintaining a relationship with your husband”.
The Head Teacher who was the investigating officer did not seek to investigate any concerns with parents or others. Mrs Pendleton made it clear during the process that she did not want to leave the school and she considered that she had done nothing wrong; she was a separate person to her husband, she had an exemplary track record in safeguarding and did not present a risk. She was suspended and then a disciplinary hearing took place at which the case against her was that by making a choice to continue a relationship with her husband in the full knowledge of the offences that he admitted to, her actions did not uphold the trust in her profession. She was told prior to the hearing that as long as she stood by her husband then the Local Authority had a clear view that she would not be suitable to be a teacher. She was summarily dismissed because she had chosen to maintain a relationship with her husband which led the panel to believe that her suitability to carry out the safeguarding responsibilities of her role had been eroded. Furthermore, it said that the choices that she had made in her personal life were in direct contravention to the ethos of the school. She appealed against her dismissal but was unsuccessful.
Employment Tribunal (ET)
The ET concluded that the real reason for Mrs Pendleton’s dismissal was the school’s view that she had exercised poor judgement in electing to stand by her husband by the fact that he was a convicted sex offender. It did not justify dismissal and did not relate to her conduct. The decision was pre-determined, the investigation inadequate and the disciplinary and appeal panels failed to exercise any independent judgement and rather rubber-stamped decisions made already by the head teacher and the Local Authority and failed to take into account Mrs Pendleton’s unblemished career. The unfair dismissal claim therefore succeeded given that she had not been found guilty of any misconduct – let alone gross misconduct – the complaint of wrongful dismissal also succeeded.
Mrs Pendleton also brought a claim for indirect discrimination based on her religious beliefs. The ET considered that she would have been dismissed irrespective of whether she held a belief in the sanctity of her marriage vows and said that anybody in the same situation would have been treated the same and dismissed the claim for indirect discrimination.
Employment Appeal Tribunal (EAT)
Mrs Pendleton argued that making her choose between her marriage vows and her career was sufficient to show that she was put at a disadvantage particularly where she may have been required to act contrary to her religious beliefs.
Indirect discrimination occurs where an apparently neutral practice is applied across the board but, in this context, puts people sharing Mrs Pendleton’s religious beliefs at a disadvantage compared with those who do not. Therefore the question to be determined was whether the school’s policy of dismissing any employee who elected to stand by their spouse or partner in these circumstances put Mrs Pendleton at a particular disadvantage. In response, the school and the Local Authority referred to the Department of Education Guidance which made clear that the behaviour or a partner or other family members may raise concerns and require careful consideration by an employer as to whether there may be a potential risk to children and young people in the workplace.
The EAT held that on the facts Mrs Pendleton was put at a particular disadvantage by the school’s practice of dismissing those in her situation and that there was no justification for the dismissal. It said that those sharing her belief would suffer a particular disadvantage given the crisis of conscience and additional dilemma that they would face having to make this choice. Therefore there was a disadvantage to Mrs Pendleton and therefore the indirect discrimination that she suffered was unlawful. The appeal was allowed.
This case presents a highly unusual set of circumstances however employers should bear in mind that they need to proceed with caution in cases where an employee, partner, spouse or family member has been called into question. The default position is not to take disciplinary action and/or just dismiss the employee as a result of the actions of somebody connected to them.
In this case, had the school considered alternatives to dismissal and been open minded during the course of the investigation and disciplinary then there may have been a different outcome. When dealing with indirect discrimination in relation to any protected characteristic under the Equality Act, an employer will also need to show that any treatment was a proportionate means of achieving a legitimate aim in order for it to be justified, otherwise it will be unlawful. There is no cap on the damages that can be awarded in cases of discrimination.
If you have any queries relating to discrimination or disciplinary proceedings or have any other employment or HR queries please contact Joanne Holborn or Tom Scaife on 01228 552600 or Caroline Rayner on 01524 548494