Oslo tragedy reminds us why Pride still matters
In Pendleton v Derbyshire County Council and the Governing Body of Glebe Junior School UKEAT/0238/15 the EAT overturned the decision of an Employment Tribunal by holding that the decision to dismiss an employee who refused to leave her husband (who had been accused of downloading indecent images of children and voyeurism) was indirect discrimination.
The employee worked as a junior school teacher and her husband was the headmaster at a separate school. There was a degree of collaboration between the two schools. Her husband was prosecuted and sentenced to a 10 month prison sentence in July 2013. The school had effectively taken the stance that they could not continue to support her in her employment whilst she continued to stay with her husband, and therefore dismissed her in August 2013.
The employee brought, amongst other claims, the claim of indirect discrimination, on the basis that she was a practising Anglo Christian and held a belief that her marriage vows were sacrosanct and therefore she faced a particular disadvantage in relation to being sacked for not having left her husband. The tribunal held that the employer had applied a provision, criteria or practice based upon a policy that it would dismiss anybody who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism. However, it was not satisfied that there was a group disadvantage which was faced by the employee, since she would have been dismissed in any event, even if she had not been an Anglo Christian holding such beliefs.
The employee appealed against the finding that there was no group disadvantage, and the EAT overturned this aspect of the tribunal’s decision. It held that there was in fact a group disadvantage on the basis that, although anyone would have been dismissed in this situation, this did not mean that those who were Anglo Christians holding the belief that the employee did, would not have suffered an additional and particular disadvantage in comparison to those who were in long term loving relationships in terms of the difficulty they went through, therefore the treatment was capable of being indirectly discriminatory.
The EAT also considered an argument by the employer that the decision to dismiss was a one-off decision and therefore could not form part of a provision, criteria or practice. The EAT, however, agreed with the tribunal’s finding on this point that, on the evidence, it appeared that the employer would have dismissed any person in those circumstances, meaning that there was a provision, criteria or practice in place. As such, the EAT consequently made a finding of indirect discrimination.
It is understandable in this case that the decision by the employer seemed somewhat untenable. They had chosen to dismiss her for the actions of her husband, she was a separate individual and did not condone the actions of her partner. The circumstances had been stressful for her, she had left her marital home for a period to attempt to deal with the situation, and for her to face the additional stress of being dismissed from her employment was quite unjust.
But, this said, it is questionable whether the court went too far in upholding an indirect discrimination claim in this instance. Not only may it seem quite far-fetched to refer to a one off decision in an extreme situation to be deemed a ‘policy’, but it also seems quite difficult to see the element of group disadvantage which was involved, given that dismissal would have resulted whether she held those religious beliefs or not, and both non-religious and religious people would have found such circumstances very difficult. As such, the employment tribunal’s previous decision was understandable in relation to group disadvantage and it might be said that the finding of unfair dismissal in relation to the employee was sufficient.
Should you have any questions about the issues raised in this blog, please contact a member of our employment team.
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