Considering comparators with regards to Indirect Discrimination

In this case, dealt with by the Employment Appeal Tribunal, unusual issues led to consideration of indirect discrimination with regards to religion and belief.

The Law

The Equality Act 2010 provides protection from discrimination due to various ‘protected characteristics’ one of which is religion or belief.

In respect of Religion or Belief the Equality Act states:

(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

(3) In relation to the protected characteristic of religion or belief—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;

(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.

Section 10

An employer indirectly discriminates against an employee if they apply a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.

A provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of the employee if

(a)the Employer applies, or would apply, it to persons with whom the employee does not share the characteristic,

(b)it puts, or would put, persons with whom the employee shares the characteristic at a particular disadvantage when compared with persons with whom the employee does not share it,

(c)it puts, or would put, the employee at that disadvantage, and

(d) the Employer cannot show it to be a proportionate means of achieving a legitimate aim.

Section 19 Equality Act.

The Facts

In this case the employee Mrs Pendleton was employed as a teacher at Glebe Junior School in Derbyshire from September 2001. Mrs Pendleton had an unblemished record at the school and was highly regarded. She was also a committed and practising Anglican Christian.

Mrs Pendleton’s husband was Headteacher at a neighbouring Junior School (they were married in March 2012).

In January 2013 Mr Pendleton was arrested on suspicion of downloading indecent images of children and voyeurism. He was subsequently charged and sentenced to 10 months in prison. The charge of voyeurism was because he had secretly taken photos in the boys changing rooms at his school.

Within 3 days of Mr Pendleton’s arrest a Lead Authority Designated Officer (LADO) meeting was arranged and it was confirmed that Mrs Pendleton had no idea or involvement in what her husband had been doing.

During this time Mrs Pendleton was signed off sick from work.

Various meetings took place and the school and local authority made it clear that they would support Mrs Pendleton if she left her husband but that it would be difficult to continue with her employment if she did not and disciplinary proceedings would be commenced.

Mrs Pendleton decided to honour her marriage commitment and remain with her husband for better or for worse as she viewed the commitment of marriage in front of god to be sacrosanct.

The school held a disciplinary meeting with Mrs Pendleton in August 2013 and she was dismissed because the panel were led to ‘believe that her suitability to carry out safeguarding responsibilities for 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.’

Mrs Pendleton made a claim to the Employment Tribunal for unfair dismissal and indirect discrimination on the grounds of her religion and beliefs.

Her claim for unfair dismissal was upheld and the Tribunal decided that the reason given by the school was not a substantial reason of a kind as to justify dismissal and did not relate to her conduct. They also decided that the dismissal decision had been predetermined and there was no independent judgement of the issues and Mrs Pendleton’s previous unblemished record.

With regards to her claim for indirect discrimination the Tribunal accepted Mrs Pendleton’s religious beliefs regarding marriage and that the School had applied a provision, criteria or practice however they decided that Mrs Pendleton would have been dismissed regardless of her religious beliefs as anyone who stood by the husband or partner would have been dismissed regardless of religious beliefs.

Mrs Pendleton appealed.

The Decision

At the Employment Appeal Tribunal, the issue of disadvantage from the provision, criteria or practice was considered and the Appeal Tribunal concluded that the Employment Tribunal had applied an incorrect view to the question. They stated that the correct way to view the issues was to consider potential groups (those sharing the protected characteristic and those who did not) and ask whether those who held a religious belief face a particular disadvantage.

Although the particular practice gave rise to a general disadvantage for all (i.e. all employees who decide to stand by their partners) it did not mean that it did not give rise to a particular disadvantage to those with the protected characteristic.

It therefore meant that Mrs Pendleton did have a particular disadvantage arising from her religious belief and it was indirect discrimination.

The Appeal Tribunal considered if there was any legitimate aim from the policy and concluded that the school had not provided any evidence to demonstrate that dismissal was objectively justified in these circumstances.

Points to note

This case illustrates the protection in place for those who have a protected characteristic and who are placed at a disadvantage because of it.

Although the policy in this case would have applied to all persons the Appeal Tribunal were satisfied that there would have been a particular disadvantage to those with Mrs Pendleton’s religious beliefs and this is the purpose of the Equality Act.

Action to take

1) The Equality Act can be complicated and include various elements applicable to your employees and therefore it is important that you have an understanding of the key elements;

2) Seek advice in situations which could be difficult, sensitive or involve a protected characteristic.

 Pendleton v Derbyshire County Council & the Governing Body of Glebe junior school – Employment Appeal Tribunal