Pendleton v Derbyshire County Council & Anor

For indirect discrimination under Equality Act 2010, a provision, criterion or practice must be assessed by its comparative effect, not merely by its neutral application. A general disadvantage affecting both comparison groups does not answer whether persons sharing the protected characteristic suffer a particular disadvantage.

Where a practice forces individuals with a religious belief in the sanctity of marriage vows to choose between their marriage and their employment, it may intrinsically disadvantage that group. The claimant must also suffer that disadvantage. A legitimate safeguarding aim does not, without evidence addressing alternatives, establish that dismissal is a proportionate means of achieving it.

The claimant, an Anglican Christian teacher with an exemplary record, was summarily dismissed after choosing to remain with her husband following his conviction for making indecent images of children and voyeurism. She maintained that her marriage vows, made before God, required her to remain with him if he showed repentance.

The Nottingham Employment Tribunal upheld her claims for unfair and wrongful dismissal. It accepted that she held a protected belief and that the respondents applied a PCP of dismissing employees who did not end such a relationship. It nevertheless dismissed her indirect discrimination claim because it found no particular disadvantage. It would alternatively have found dismissal disproportionate.

The claimant appealed the finding on disadvantage. The respondents cross-appealed the findings of a PCP and lack of justification.

1. Appeal allowed; cross-appeal dismissed. The Employment Appeal Tribunal set aside the dismissal of the indirect belief discrimination claim and substituted a finding that it succeeded.

2. The Employment Tribunal was entitled to find a PCP. Although “policy” is not statutory language, it can comprehend a “practice” for the purposes of section 19 of the Equality Act 2010. The decision-maker’s evidence that any employee in the same circumstances would be dismissed, together with the respondents’ closed mind to alternatives, supported a finding of a practice or policy capable of future application. The unusual nature of the facts did not preclude that conclusion.

3. The Employment Tribunal erred on comparative disadvantage. It treated the PCP’s neutral application, and the fact that non-believers in loving relationships could also be disadvantaged, as determinative. The comparison instead had to isolate the protected characteristic while comparing persons whose circumstances were otherwise the same or not materially different.

4. “Particular disadvantage” has no prescribed threshold. A PCP may impose a general burden on both groups while imposing an additional burden on those sharing a religious belief. Here, persons in comparable long-term and committed relationships who also believed that marriage vows made before God were sacrosanct faced an additional dilemma of conscience if required to choose between their marriage and their career. The PCP was intrinsically liable to disadvantage that group, and the claimant suffered that disadvantage. Remittal was unnecessary because there was only one lawful conclusion.

5. The respondents established a legitimate aim of safeguarding children, but produced no evidence that dismissal, rather than an alternative measure, was proportionate. There was no finding or evidence that the claimant lacked insight, and the respondents had not considered alternatives. The justification cross-appeal therefore failed.

• Employment Appeal Tribunal: claimant’s appeal allowed and respondents’ cross-appeal dismissed; the indirect belief discrimination claim was allowed: [2016] UKEAT 0238_15_2903.
• Nottingham Employment Tribunal: upheld unfair and wrongful dismissal claims, but dismissed the indirect belief discrimination claim. Its judgment was sent to the parties on 23 April 2015.