Mrs Pendleton was a Teacher with an exemplary record of service;
she was well-respected and highly-regarded. She taught 10-11 year
olds and she had no pre- or post-school responsibilities or other
extra curricular contact with students.
We will trace the remarkable facts which led to her being
unfairly dismissed and subject to indirect religious
Her husband was a Headmaster at another local School (within the
same cluster group so there was some partnership working between
the Schools). He was dismissed following his conviction for making
indecent images of children and voyeurism. Ten months'
imprisonment was his sentence. The voyeurism was him taking a
camera, covertly secreted within a pen, into the boys changing
rooms at School and taking photographs of undressed young boys.
There was no suggestion that Mrs Pendleton knew of her
husband's actions prior to his arrest. Indeed, she was shocked
and distressed and left the marital home for a period. She took a
period of leave from work, having initially been reassured by the
Headteacher that her job would remain open.
On the basis that Mr Pendleton had demonstrated unequivocal
repentance, Mrs Pendleton was determined to stay with her husband
pursuant to her Anglican Christian marriage vows.
Mrs Pendleton's employer, Derbyshire County Council,
dismissed her for choosing to maintain her marriage with her
husband. She claimed unfair dismissal and also indirect religious
It was found that her dismissal was unfair and wrongful for the
Neither purported reason for dismissal
(conduct or Some Other Substantial Reason) was established;
The decision was pre-determined;
The investigation was woefully
There was a failure to consider mitigation
(her otherwise unblemished career) or alternatives
The appeal panels failed to exercise independent judgment;
The decision to dismiss was well outwith the band of
Had I been advising the School, I would have endeavoured to
present evidence of some other substantial reason justifying
termination, namely the total loss of confidence in her by teachers
and parents because of their perception that she did not exercise
Indirect religious discrimination
There was no dispute that Mrs Pendleton was a committed and
practising Anglican Christian. She genuinely
believed that marriage vows were sacrosanct, having been
made to God and being an expression of her religious faith.
Her employer applied a provision, criterion or
practice, namely a policy/practice of dismissing those who
chose not to end a relationship with a person convicted of making
indecent images of children and voyeurism. The policy would have
been applied across the board (looking forward, there was an
element of potential recurrence), regardless of whether there was
held a religious belief in the sanctity of marriage vows.
The dismissal policy placed the Claimant (and those sharing her
religious belief) at a particular disadvantage
given the crisis of conscience they would face; that finding was
not affected by the fact that others (not sharing that religious
belief) would also be placed at a disadvantage by the application
of the policy. The policy was intrinsically liable to disadvantage
a group sharing the religious belief (i.e.
protected characteristic) of Mrs Pendleton.
The above facts lead to the conclusion that Mrs Pendleton was
subject to indirect discrimination by reason of
her religious belief.
As you may be aware, indirect discrimination can potentially be
There was no evidence presented by the employer to justify that
its policy of dismissal was a proportionate means of achieving a
legitimate aim (the protection of safeguarding of
children in a school environment) and therefore not unlawful. There
was no evidence about why dismissal was
proportionate or if there was an alternative less
discriminatory means of achieving the legitimate aim. Similarly,
the employer had also failed to present evidence of Mrs
Pendleton's lack of insight as to the difficulties arising from
her continued association with a convicted sex offender.
In reading this case, I found myself wondering whether the
School could in fact have gathered and presented evidence that
dismissal was a proportionate means of achieving its legitimate
aim, having particular regard to the fact that teachers have to be
able to be trusted to make complex and sensitive decisions in order
to safeguard their students. If the School had presented such
evidence, it may not have been found to have committed indirect
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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