InsightsInsight - Employment & HR - POSTED: May 20 2016
Dismissing employee on the grounds of her refusal to leave her husband
Dismissing employee on the grounds of her refusal to leave her husband after he was convicted of sex offences held to be indirect religious discrimination
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In the case of Pendleton v Derbyshire County Council, the claimant was a teacher whose husband was convicted of making indecent images of children and voyeurism. As a result of her refusal to leave her husband, she was dismissed.
In the Employment Tribunal, her claim for unfair dismissal was accepted. The Employment Tribunal could not find gross misconduct or Some Other Substantial Reason (SOSR) why she was dismissed. Her claim for discrimination was rejected in the Employment Tribunal. Her argument was that her Christian faith meant that she treated her marriage vows as a sacrosanct. Her dismissal had been as a result of a practice that dismissed someone for failing to end a relationship with a sex offender and this put her at a particular disadvantage. However, the Employment Tribunal held that she would have been dismissed irrespective of her religious belief.
The Employment Appeal Tribunal (EAT) found that the Employment Tribunal had failed to consider the question of particular disadvantage to those who would feel under pressure to act contrary to their religious views, all other things being equal. The fact that others would also be disadvantaged did not change the fact that for the claimant there would be a particular disadvantage. The employer did cross appeal and put forward the argument that the dismissal was a proportionate means of achieving a legitimate aim but no evidence was found for this.
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