Leave your husband or lose your job

This was the harsh choice placed before Ms Pendleton, a Christian teacher whose husband – the Head of another school – had been convicted of making indecent images of children and of voyeurism. She knew nothing about her husband's activities until his arrest and there was no suggestion that she was in any way involved in them. Nevertheless, the school took the view that her relationship with her husband was incompatible with her safeguarding duties to the school. Ms Pendleton stayed with her husband and, when the school fired her, she brought a case to the Employment Tribunal.

The Tribunal agreed that she had been unfairly dismissed, but disagreed that she had been indirectly discriminated against on the grounds of her religious beliefs.

To prove indirect indiscrimination, she had to show that the school had applied a "provision, criterion or practice" (PCP) to her that:

1. it would also apply to those who did not share her religious convictions,

2. would put people who shared those convictions at a particular disadvantage compared with those who didn't,

3. did in fact put her at such a disadvantage, and

4. the school could not show to be a proportionate means of achieving a legitimate aim.

Her argument was that, because she believed that her marriage vows were sacred, the school's approach of asking her to choose between her marriage and her career placed her at a particular disadvantage, and that this was unjustifiable.

The Tribunal held that the school had applied a PCP of dismissing any employee who stayed with their spouse or partner in the circumstances that had faced Ms Pendleton. However, it rejected her contention that it placed her at a particular disadvantage, saying:

"Anyone who elected to stand by their partner or spouse in the same circumstances would have met with the same unfortunate fate...those who share the Claimant's religious conviction were at no greater or lesser risk of being dismissed than those who simply exercised their choice to stand by their partner or husband..."

In other words, her claim failed at stage 2 of the test, as outlined above. The Tribunal went on to say that if they had found the PCP to be discriminatory, they would not have considered it to be a proportionate means of achieving the legitimate aim of safeguarding pupils.

Ms Pendleton appealed to the Employment Appeal Tribunal (the EAT). The school also appealed, arguing that the Tribunal had been wrong to treat the school's ultimatum to Ms Pendleton as a PCP.

The EAT upheld the Tribunal's view that the choice placed before Ms Pendleton amounted to a PCP. Although a PCP generally requires an element of repetition and the circumstances in this case had only arisen once, the Governor who made the decision to dismiss her gave evidence that the school would treat anyone else the same way in those circumstances.

The EAT overturned the Tribunal's finding on discrimination: whilst anyone forced to choose between their spouse and their career would be placed at a disadvantage, the Tribunal had failed to consider whether, all other things being equal, Ms Pendleton (and those sharing her beliefs) faced a comparatively greater disadvantage. In the EAT's view, Ms Pendleton's beliefs did put her at a greater disadvantage: in addition to the prospect of losing her marriage, her conscience was burdened by the thought that leaving him would involve breaching sacred vows. The comparative disadvantage faced did not have to pass a particular threshold to meet the statutory test.

The EAT went on to find that dismissal was not a proportionate means of achieving a legitimate aim, and that the school had indirectly discriminated against Ms Pendleton.

Lessons for schools?

The facts in this case are unusual, but illustrate that, when it comes to indirect discrimination:

1. a practice used on a single occasion can amount to a PCP for the purposes of anti-discrimination law, if it would be applied were the same situation to arise in the future;

2. the question is not "Does our policy inconvenience everyone?", but "Does our policy cause particular difficulties for people with relevant protected characteristics?" (1)

Unfortunately, the case does not offer guidance on what schools should do in this type of situation. When arguing that dismissal was appropriate, the school pointed to non-statutory guidance (2) which stated that the behaviour of a partner or other family member may raise concerns and require careful consideration by an employer as to whether there may be a potential risk to children and young people. Although the school's approach was found to be inflexible and disproportionate, the notion that a staff member's associates may pose a risk to pupils is not unreasonable: under the Childcare (Disqualification) Regulations 2009 a person will be disqualified from providing certain childcare facilities if they live in the same household as someone who is also disqualified; in a recent case, the Court of Appeal found that a primary school had not unfairly dismissed its Headteacher for failing to disclose that she was in a close (albeit non-romantic) relationship with a man who had been convicted of child sex offences. Dealing with situations of this nature will, of course, require a fact-sensitive approach, careful consideration and delicate handling.

If you have any concerns about whether your school's policies might be inadvertently discriminatory, or about assessing and managing the risk that any staff member's associates may have on your pupils, please get in touch with us for advice.

(1) The characteristics in question are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation.

(2) Guidance for Safer Working Practice for Adults who work with Children and Young People in Education

Settings, published in 2009. This has been archived by the Government.

If you require further information on anything covered in this briefing please contact Rachel Holmes ([email protected], 020 3375 7561), Katie Rigg ([email protected]/ 020 3375 7607) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Schools and Employment pages on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2016