Pendleton v Derbyshire County Council & Anor UKEAT/0238/15/LA

Appeal against an ET decision which upheld the Claimant's claims of unfair and wrongful dismissal but dismissed her complaint of indirect belief discrimination. Cross-appeal against the finding of unfair dismissal. The appeal was allowed, the cross-appeal was dismissed.

The Claimant, who was a teacher, was dismissed after she refused to end a relationship with her husband who was convicted of sex offences on the basis that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith. The ET found that she had been unfairly dismissed but dismissed her discrimination claim, considering that no particular disadvantage had been shown; the Claimant would have been dismissed irrespective of whether she held a religious belief in the sanctity of her marriage vows. The Claimant appealed and the Respondent cross-appealed.

The EAT allowed the appeal. The ET had focused on the fact that the PCP was of neutral application rather than the comparative effect of its application to the relevant groups. It had further failed to consider the question of particular disadvantage that would be suffered by those who - all other things being equal (so, being in a longstanding, loving and committed relationship with someone discovered to have committed the offences in question and being face with a choice between continuing in that relationship or their career) - would also feel under pressure to act contrary to their religious belief in the sacrosanct nature of their marriage vows. "Disadvantage" did not have to meet any particular threshold; the fact that the application of the PCP would put others at a disadvantage did not prevent there being a particular disadvantage for those sharing the Claimant's belief. On the cross-appeal and the question whether dismissal of the Claimant was a proportionate means of achieving a legitimate aim, the ET had rightly recorded that the Respondents had adduced no evidence on this point.

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Appeal No. UKEAT/0238/15/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 29 March 2016

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

PENDLETON (APPELLANT)

(1) DERBYSHIRE COUNTY COUNCIL

(2) THE GOVERNING BODY OF GLEBE JUNIOR SCHOOL (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEAL & CROSS-APPEAL****APPEARANCES**

For the Appellant MR RICHARD O'DAIR (of Counsel) Instructed by: NASUWT Hillscourt Education Centre Rose Hill Rednal Birmingham B45 8RS

For the Respondents MR NIGEL GRUNDY (of Counsel) Instructed by: Derbyshire County Council Legal Services County Hall Bank Road Matlock Derbyshire DE4 3AG

**SUMMARY**

RELIGION OR BELIEF DISCRIMINATION

Religion or belief (section 10 Equality Act 2010) - indirect discrimination (section 19 Equality Act 2010)

The Claimant - a teacher of some years standing with an exemplary record of service at the Second Respondent school - was dismissed after she elected to remain with her husband (a Headmaster of another local school) after he had been convicted of making indecent images of children and voyeurism, for which he was sentenced to ten months' imprisonment. There was no suggestion that the Claimant had known of these matters before her husband's arrest.

The ET upheld the Claimant's claim of unfair dismissal: the Respondents had not been able to make good either reason relied on for the dismissal (conduct or SOSR), had pre-judged the decision, carried out an inadequate investigation, failed to consider mitigation or alternatives to dismissal, and generally reached a decision outside the band of reasonable responses.

On the Claimant's claim of indirect discrimination because of religion or belief, the ET accepted she had a genuine belief, for section 10 Equality Act 2010 purposes, that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith (Anglican Christian). It further found the Respondents had applied a PCP in the form of a policy of dismissing those who choose not to end a relationship with a person convicted of making indecent images of children and voyeurism. The ET did not, however, consider particular disadvantage had been shown; the Claimant would have been dismissed irrespective of whether she held a religious belief in the sanctity of her marriage vows. If the Claimant made good her case on disadvantage, the ET would (in the alternative) have found dismissal was not a proportionate means of achieving the legitimate aim of protecting and safeguarding schoolchildren, the Respondents having failed to adduce evidence to establish this.

On the Claimant's appeal against the finding on "disadvantage" and on the Respondents' cross-appeal on the finding of a PCP and on justification:

Held: *Allowing the appeal, setting aside the dismissal of the indirect belief discrimination claim and substituting a finding that the claim had been made out. Dismissing the cross-appeal.*On the ET's conclusion on "PCP": The ET's finding of a "policy" was capable of comprehending the "practice" relied on by the Claimant (the Claimant had complained of the operation of a practice of regarding as gross misconduct/SOSR a choice not to end a relationship with a person convicted of making indecent images of children and voyeurism). It had found that the dismissal had been the application of a policy or practice and, as such, there was an element of potential recurrence (consistent with **Nottingham City Transport Ltd v Harvey** UKEAT/0032/12/JOJ). Although the particular facts of the case were unusual, the ET's conclusion was permissible given the evidence of the dismissing Governor that anyone would have been treated in the same way in these circumstances and the ET's findings as to the Respondents' closed mind to any alternative other than dismissal.On the issue of disadvantage: In considering the comparative collective disadvantage, the ET had focused on the fact that the PCP was of neutral application rather than the comparative effect of its application to the relevant groups. It had further failed to consider the question of *particular* disadvantage that would be suffered by those who - all other things being equal (so, being in a longstanding, loving and committed relationship with someone discovered to have committed the offences in question and being face with a choice between continuing in that relationship or their career) - would also feel under pressure to act contrary to their religious belief in the sacrosanct nature of their marriage vows. "Disadvantage" did not have to meet any particular threshold; the fact that the application of the PCP would put others at a disadvantage did not prevent there being a *particular* disadvantage for those sharing the Claimant's belief.

Moreover, the ET's findings as to the nature of the Claimant's belief meant that there could only be one answer to the disadvantage question: the PCP identified was intrinsically liable to disadvantage a group sharing the Claimant's belief (i.e. with the relevant protected characteristic) and had subjected her to that disadvantage. The ET's decision would accordingly be set aside.

As for justification: The Respondents asserted that the ET had failed to take into account the Claimant's own lack of insight as to the difficulties arising from her continued association with a convicted sex offender and had also wrongly recorded that they had adduced no evidence on justification when they had relied on guidance highlighting the difficulties of such association. There was, however, no evidence before the ET (and no findings made by it) of a lack of insight on the Claimant's part. As for the guidance relied on by the Respondents, the ET had proper regard to this in finding that a legitimate aim had been made out. Having then turned to the question whether dismissal of the Claimant was a proportionate means of achieving that aim, the ET had rightly recorded that the Respondents had adduced no evidence on this point. There had been no contemporaneous consideration of alternatives (see the ET's findings on unfair dismissal), and there was no further evidence to establish why dismissal had been a proportionate course in these circumstances.**HER HONOUR JUDGE EADY QC****Introduction**
  1. I refer to the parties as the Claimant and the Respondents as below. This is the hearing of the Claimant's appeal and the Respondents' cross-appeal against a Judgment of the Nottingham Employment Tribunal (Employment Judge Legard sitting with members on 2-5 March 2015; "the ET"), sent to the parties on 23 April 2015. Representation before the ET was as it has been before me. By its Judgment the ET upheld the Claimant's claims of unfair and wrongful dismissal but dismissed her complaint of indirect belief discrimination.
**The Background Facts**
  1. The Claimant is a qualified Teacher who was employed at the Second Respondent school as from September 2001. At the date of her dismissal she was responsible for teaching a Year 6 class (that is, 10 to 11 year olds). Relevantly, she had no after school or breakfast club responsibilities and no other extra curricular contact with students. She had an unblemished disciplinary record, was well respected and highly regarded by students, colleagues and parents and had given exemplary service. She is also a committed and practising Anglican Christian.
  1. In March 2002 the Claimant had married Matthew Pendleton, who was or became Headteacher at a nearby junior school that was part of the same cluster group as the Second Respondent school. That inevitably meant a degree of partnership working between the two schools, which were both situated in South Normanton, a relatively close knit community. On 22 January 2013, Mr Pendleton was arrested on suspicion of downloading indecent images of children and voyeurism. He was later charged and convicted of those offences and sentenced to a ten-month term of imprisonment starting on 19 July 2013; he served half that sentence. The voyeurism charges related to Mr Pendleton having taken a camera, secreted within a pen, into the boys' changing rooms at his school and taking photographs of young boys in a state of undress. The fact of Mr Pendleton's arrest and subsequent conviction gave rise to rumour and gossip in the local community. It was a bolt from the blue for the Claimant. She was shocked and distressed and in the immediate aftermath of the arrest left her marital home to stay with her parents, taking a period of leave from work, initially reassured by the Headteacher of the school, Mrs Seymour, that her job would remain open.
  1. On 25 January 2013 a Lead Authority Designated Officer ("LADO") meeting was convened, which confirmed there was no evidence the Claimant had any knowledge or involvement in the matters for which her husband had been arrested. Notwithstanding her earlier assurances to the Claimant, however, Mrs Seymour was recorded as saying that the school struggled to see how it could support the Claimant if she remained with her husband.
  1. The Claimant was on sick leave from 23 January. During her absence she received support from colleagues, although not from the school itself, and her CRB certificate was re-issued with no difficulties. Meanwhile, whilst not condoning or giving the impression of condoning her husband's actions, the Claimant had determined she would, consistent with her marriage vows - specifically her commitment, in the presence of God, for better or worse - stay with her husband, provided she was satisfied he had demonstrated unequivocal repentance.
  1. A further LADO meeting took place on 18 March 2013, when it was recorded:

"The situation will be made very clear to [the Claimant] in terms of her employment and the challenges that might be ahead for her. This will hopefully help [the Claimant] make an informed decision on her future … Management will be taking a clear line that it is not appropriate to return to post if an employee's partner has been convicted of offences and they continue to support them but should she decide to leave [her husband] she would be supported." (ET Reasons paragraph 3.18)

  1. More directly, Mrs Seymour was recorded as stating:

"… she is concerned that should [the Claimant] continue to support [her husband] her actions could be seen as condoning his behaviour.

If [the Claimant] decides to continue to support [her husband] disciplinary procedures will be implemented." (ET Reasons paragraph 3.18)

  1. On 19 April, a meeting took place with the Claimant at the County Hall during which she was asked to confirm if she intended to stay with her husband, it being stated that, if so, there would be consequences. She was told the governing body had already indicated that it did not wish her to return and a number of parents had written to express concern, although no such evidence was ever disclosed. When the Claimant asked if she was being invited to choose between her marriage vows and her career, she was met with shrugs and raised eyebrows. In the event, given the Claimant's stance, disciplinary action was set in train. Mrs Seymour was the investigating officer and the charge was of potential gross misconduct, as follows:

"The extent to which the trust and confidence, which others would have in your ability to carry out safeguarding responsibilities of your role as Teacher … would be eroded whilst maintaining a relationship with your husband." (ET Reasons paragraph 3.22)

  1. Mrs Seymour did not seek to investigate concerns with parents or others. When she met with the Claimant on 21 May, the Claimant made clear she did not wish to leave the school and jeopardise her career but considered she had done nothing wrong, was a separate person to her husband, had an exemplary track record in safeguarding and did not present a risk. When she pressed Mrs Seymour to provide details of parents' complaints or concerns, she was told:

"Some have been supportive … A lot of mud has been thrown and some has stuck …

[But that it's] quiet at the moment." (ET Reasons paragraph 3.22)

  1. On 20 August, the Claimant was suspended. A subsequent disciplinary hearing took place on 12 September, at which Mrs Seymour put the case against the Claimant, as follows:

"By making a choice to continue a relationship with her husband in full knowledge of the offences he has admitted to, [the Claimant's] actions do not uphold the trust in the profession." (ET Reasons paragraph 3.25)

  1. Prior to the disciplinary hearing, in an email exchange of 29 August, the HR Director of the First Respondent, Mr Stonehouse, confirmed to Mrs Seymour that:

"As long as she stands by her husband the LA has a clear view that she is not suitable to be a teacher." (ET Reasons paragraph 3.26)

  1. At the disciplinary hearing (presided over by Mr Greensmith, the Chair of Governors) the decision was taken that the Claimant should be summarily dismissed because she had:

"… chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role … have been eroded. Furthermore the choices [she had] made in [her] personal life are in direct contravention to the ethos of … the … School." (ET Reasons, paragraph 3.28)

  1. The Claimant appealed, but her appeal was unsuccessful.
**The ET's Conclusions and Reasoning**
  1. In response to the complaint of unfair dismissal, the Respondents contended that the reason for the dismissal was conduct or some other substantial reason ("SOSR"). The ET concluded the real reason for the Claimant's dismissal was the Respondents' view that she had exercised poor judgement in electing to stand by her husband despite the fact that he was a convicted sex offender. That was not a substantial reason of a kind such as to justify dismissal and did not relate to the Claimant's conduct; the Respondents had failed to discharge the burden of proving a potentially fair reason. Even if that were not correct, the dismissal was unfair for the purposes of section 98(4) of the Employment Rights Act 1996. The decision was predetermined, the investigation woefully inadequate, and the disciplinary and appeal panels failed to exercise independent judgement, rubberstamping decisions made by Mrs Seymour and the local authority and taking little or no account of the Claimant's hitherto unblemished career. The decision to dismiss fell well outside a band of reasonable responses. The unfair dismissal claim succeeded, and the ET declined to make any reduction pursuant to Polkey v A E Dayton Services Ltd [1987] IRLR 503. As the Claimant had not been guilty of any misconduct - let alone gross misconduct - the complaint of wrongful dismissal also succeeded.
  1. On the claim of indirect discrimination, the ET accepted the Claimant held a belief for the purposes of section 10(2) of the Equality Act 2010 ("the EqA"); namely, that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith. It further accepted that the Respondents had applied a provision, criterion or practice ("PCP"), namely a policy of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism. The ET considered, however, the Claimant would have been dismissed irrespective of whether she held a belief in the sanctity of her marriage vows. It reasoned:

"6.12. … 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 … It seems to us, on the evidence, that those people who were unmarried but in a long-term loving relationship and who exercised the same choice as the Claimant were just as likely to face the prospect of dismissal … the pcp did not place the Claimant (and those with whom she shared this religious belief) at any greater (or particular) disadvantage when compared to those who did not (but, in relation to whom, there was no material difference in circumstance)."

  1. It continued:

"6.13. Similarly, it is entirely possible that those who shared the belief and conviction of the Claimant could have chosen to leave their spouse (notwithstanding their marriage vows), specifically in the event that the partner in question had failed or refused to repent for his or her crimes. Accordingly, we concluded that the Claimant had failed to make out her complaint for indirect discrimination and the claim must therefore fail."

  1. Having thus concluded that the Claimant had failed to make out her complaint of indirect discrimination, the ET made clear that, had it been necessary to consider the question of proportionality, it would have found that the Respondents had failed to show the Claimant's dismissal was a proportionate means of achieving a legitimate aim (see paragraph 6.14).
**The Appeal and the Claimant's Submissions**
  1. As developed before me, the Claimant's appeal raised two main objections to the ET's rejection of the indirect discrimination case: (1) it had confused the neutral application of the PCP with its impact (see the speech of Baroness Hale at paragraphs 71 to 72 in Secretary of State for Trade and Industry v Rutherford [2006] ICR 785 HL), and (2) had further erred by failing to apply the principle that a PCP applied equally to believers and non-believers may be particularly disadvantageous to believers because the required conduct was contrary to the believers' religious beliefs; as the case law showed (see Ladele v London Borough of Islington [2010] IRLR 211, McFarlane v Relate Avon Ltd [2010] IRLR 872 and Mba v London Borough of Merton , a PCP that requires a religious believer to act contrary to conscience will satisfy the particular disadvantage test (and see the Judgment of Baroness Hale in Doogan v Greater Glasgow & Clyde Health Board.
  1. At paragraph 6.12 of its Judgment, the ET had failed to answer the two questions it had to determine: (i) did the PCP - the policy of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism (see paragraph 6.11) - put those sharing the Claimant's belief in the sanctity of the marriage vow at a disadvantage; and (ii) did the Claimant suffer that disadvantage? The first question was not answered by reflecting on the fact that other groups might also have been put at a disadvantage by operation of the PCP in these circumstances. The ET's earlier finding had clearly recognised the Claimant was affected in her faith by the application of the PCP. That, on its face, answered the second question. Further, given that the ET accepted the Claimant was thus expressing her religious belief as an Anglican Christian, that was also sufficient to answer the first. As the Equality & Human Rights Commission's Code of Practice made plain, the finding that the Claimant was being put to the choice of having to elect between her marriage vows and her career was sufficient (see paragraph 4.10 of the Code: "Sometimes, a provision, criterion or practice is intrinsically liable to disadvantage a group with a particular protected characteristic"). The ET had wrongly focused solely on the disadvantage of dismissal as opposed to the comparative difficulty facing the two groups as a result of the election being forced upon the Claimant by the Respondents. Disadvantage required only a low threshold, and putting someone to election where they might have to act contrary to their religious beliefs was sufficient to amount to disadvantage for these purposes.
**The Respondent's Submissions and the Cross-Appeal**
  1. The Respondents resisted the appeal, relying on the ET's reasoning but further cross-appealing the ET's findings (1) on PCP and (2) on justification.
  1. On the appeal itself, the Respondents contend that the ET properly directed itself in accordance with section 19 EqA and undertook the relevant comparative exercise. It had set out the relevant statutory tests and grappled with the difficulties inherent in determining comparative disadvantage on a collective level (see per Baroness Hale in Rutherford at paragraph 73). The ET here had to define the right groups for comparison and ask whether the Claimant had proved how and why the PCP particularly disadvantaged group 1 as opposed to group 2. The first group, as characterised by the ET, consisted of those who shared the Claimant's belief in the sanctity of the marriage vow. The second would also be comprised of those in a loving and committed relationship, whether married or not, who faced the same difficult circumstances but who did not share the same belief. As the ET found, both groups would have faced the choice between their career and their commitment to their spouse/partner, and both would face the same disadvantage. The Claimant had not proved that the group sharing her belief would have suffered any particular or greater disadvantage.
  1. Turning then to the cross-appeal and the ET's finding on PCP, this had been pleaded as:

"The practice of regarding as gross misconduct/SOSR a choice not to end a relationship with a person convicted of making indecent images of children and voyeurism."

  1. The ET had wrongly found that the PCP was a "policy". That was not the pleaded case and had not been addressed in evidence. The ET needed to explain its finding in this regard: what policy, and was it formal or informal? If derived from the evidence of Mr Greensmith, Chair of Governors (as the Claimant contended), how had he bound both Respondents? Moreover, the ET erred in law in failing to determine whether the Claimant had established that the Respondents had engaged in a practice, as pleaded. A "practice" must have an element of repetition about it (Nottingham City Transport Ltd v Har, although Mr Grundy did not consider that was necessarily the case for a policy. Here, the Respondents had found themselves in a unique situation; there was no practice.
  1. The second point raised by the cross-appeal related to the ET's finding on justification. In holding that it had been provided with no evidence whatsoever to demonstrate the dismissal was a proportionate response (paragraph 6.14), the ET failed to consider: (1) the lack of appreciation or insight on the part of the Claimant as to disqualification by association, and/or (2) the available guidance and Department of Education Teachers' standards referred to during the course of the hearing. Specifically, the Guidance for Safer Working Practice for Adults who Work with Children and Young People made plain that the behaviour of a partner or other family members may raise concerns and require careful consideration by an employer as to whether there may be a potential risk to children and young people in the workplace (see page 129 of the EAT bundle). That said, Mr Grundy accepted the ET had expressly found the Respondents had failed to consider alternatives before deciding to dismiss the Claimant (as referenced in the ET's Reasons on the unfair dismissal claim) and that there was no further evidence on these matters adduced before the ET in support of the Respondent's case on objective justification and the proportionality of dismissal rather than any other alternative.
**The Claimant's Response to the Cross-Appeal**
  1. The Claimant observed that the Respondents had not sought to distinguish between policy or practice until the penultimate day of the ET hearing. The phrase "PCP" had been used conjunctively throughout the proceedings, and the ET's Judgment should be read as comprehending practice as much as policy. In any event, the point was a bad one. The evidence of Mr Greensmith, who had made the decision to dismiss, was as follows:

"11. … As far as I was concerned we would treat anybody else in the same way regardless of whether they were married, unmarried but living with someone as a partner or simply co-habiting but supporting someone with convictions for sexual offences against children."

  1. The ET may also have had regard to its earlier findings on the Respondents' closed mind, communicated (as the ET found) to Mr Greensmith. Generally, section 19 EqA allowed that the PCP had either been applied or would apply; it specifically allowed for a projection forward, not simply for past application. On that basis, it was open to the ET to conclude that there had been a practice; the Respondents would act consistently in the future. The case of Harvey was distinguishable.
  1. As for justification, there was no evidence of lack of insight and no finding of fact to that effect. And, whilst the documentary evidence relied on by the Respondents might establish a legitimate aim, it did not establish that dismissal was a proportionate means.
**The Relevant Legal Principles**
  1. The appeal and cross-appeal both concern the Claimant's claim of indirect discrimination, a concept defined by section 19 EqA 2010:

"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if -

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are -

religion or belief;

…"

  1. Having thus set out the statutory definition, I note it does not expressly use the terminology of "policy". It has, however, generally been held that, given the protective purpose of the statute, the terms "provision, criterion or practice" should be construed broadly rather than in an overly technical way (see for example Harvey at paragraph 18). In Harvey the EAT (whilst allowing that different approaches might be applicable to different cases) nevertheless opined that "practice" for these purposes has "something of the element of repetition about it".
  1. A complaint of indirect discrimination might be described as a complaint as to the effect of an apparently neutral PCP, which causes disadvantage to a particular group sharing a particular protected characteristic. As Baroness Hale identified in Rutherford:

"72. It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. …

73. But the notion of comparative disadvantage or advantage is not straightforward. It involves defining the right groups for comparison. …"

  1. I do not read "particular disadvantage" for these purposes as requiring any particular level or threshold of disadvantage; it seems to me that the term is apt to cover any disadvantage (and see the Judgment of the CJEU in CHEZ Razpredelenie Bulgaria Ad v Komisia Za Zashtita ot Diskriminatsia [2015] IRLR 746). That said, where a comparison is carried out to determine the existence of particular disadvantage, care must be taken to ensure that the pool of individuals upon whom the effect of the PCP is evaluated is populated by persons whose circumstances are the same or not materially different from those of the Claimant (section 23 EqA 2010). Moreover, as section 19 is worded, not only must there be a comparative group or collective disadvantage but the PCP must also put the Claimant at that disadvantage.
  1. More generally, in considering cases involving religion or belief, it is not a requirement that the ET determine - whether considering group or individual disadvantage - whether the particular manifestation of the religion or belief itself is a mandatory duty or requirement of that religion or belief; there need only be a "sufficiently close and direct nexus between the act and the underlying belief" (see Eweida v UK .
**Discussion and Conclusions**
  1. It is appropriate to consider the points raised by the appeal and cross-appeal in the order in which they arose for the ET. The first question thus arises from the cross-appeal: whether the ET erred in finding the Respondents had applied "a policy" when the Claimant's case on "PCP" had been pleaded on the basis of there having been "a practice"?
  1. "Policy" is not a term used by section 19 EqA and it may have been preferable if the ET had kept to the statutory language, as relied on by the parties. That said, I consider "policy" to be capable of comprehending a "practice" for these purposes, and I do not accept there was any prejudice to the Respondents from the identification of a practice in this way.
  1. The Claimant had complained of the operation of a practice of regarding as gross misconduct/SOSR a choice not to end a relationship with a person convicted of making indecent images of children and voyeurism. The Respondents had given evidence through Mr Greensmith - the relevant decision maker - that this is how they would have treated anyone in those circumstances. Further, as the ET found, the Respondents operated a closed mind to the Claimant's specific circumstances, taking the view there could be no alternative to dismissal. Although the facts were highly unusual, that does not mean the Respondents' response could not amount to the operation of a practice or policy, and I do not read the EAT's Judgment in Harvey as ruling otherwise. Indeed, I consider that the Respondent's reading of Harvey confuses an isolated failure to follow a policy (that case) with a decision that flows from the application - however rare - of a practice or policy (as here). The Respondents' policy or practice was to dismiss any employee who elected to stand by their spouse or partner in the circumstances that had faced the Claimant. The Respondents might not have had to apply that policy or practice previously but the ET was entitled to conclude (given the Respondents' own evidence) that this is how they would respond in those circumstances.
  1. Thus, the ET had regard to the PCP as identified by the Claimant and made a permissible finding (given the Respondents' evidence, as apparent from Mr Greensmith's witness statement, and the ET's findings on the unfair dismissal case) consistent with that case. That was to the effect that the Respondents were adopting and applying a policy or practice that they would apply again should the circumstances arise. Section 19 permits an ET to look forward as well back and the finding by the ET was permissible both on the case as run before it and on the evidence and its findings of fact.
  1. The next issue is that raised by the appeal, and relates to the question of disadvantage under section 19 EqA. Specifically, whether the ET properly undertook the exercise required of it under section 19(2) EqA in determining whether the PCP put persons sharing the relevant characteristic - the holding of the belief that marriage vows were sacrosanct - at a particular disadvantage and whether it put the Claimant at that disadvantage?
  1. Determining the question of comparative collective disadvantage is not simply answered by identifying that the PCP applies to persons both within and without the group sharing the relevant characteristic; that is simply the neutral application of the PCP. In my judgment, it is, moreover, not answered by identifying that others falling outside that group will also consider themselves disadvantaged in some way by the application of the PCP; that again may simply be the product of the neutral application of the PCP. That is, however, what the ET's reasoning at paragraph 6.12 essentially determines; it is not sufficient.
  1. Mr Grundy considers that to be an unfair reading of the reasoning. He observes that this is a difficult exercise (as recognised by Baroness Hale in Rutherford) and points to the fact that the ET found that those who did not share the Claimant's belief might still face disadvantage from the application of the PCP, as the ET had identified it, because they were in a longstanding loving relationship and would also not wish to have to choose between that relationship and their career. He also notes that at paragraph 6.13 the ET had allowed that even those holding the Claimant's belief might, in different circumstances, choose to leave their spouse notwithstanding their marriage vow. Whilst not seeking to underestimate the difficulties that can arise in such cases, I consider that Mr Grundy's submissions and the ET's reasoning are based on an elision of a number of different issues that only serves to confuse.
  1. First, the comparative exercise that the ET had to carry out had to be based upon groups that were - absent the particular protected characteristic - in circumstances that were the same or not materially different (section 23 EqA). That meant the comparison of both groups (those sharing the Claimant's protected characteristic as compared to those who did not share that characteristic but to whom the PCP would also be applied) would involve persons who were in long-term loving relationships. If facing the very difficult personal circumstances as arose here, both groups would undoubtedly face a very real additional disadvantage if put to the election of choosing between their partner and their career. For some individuals falling into the comparator group (being in a partnership but not married or married but not sharing the same view of their marriage vows as the Claimant) that disadvantage might have been the same as that suffered by the Claimant. The task for the ET was, however, not to pick out particular individuals who might fall into either group but to consider the potential groups (those sharing the protected characteristic and those who did not) and ask whether - taking, as applicable to both, the difficulty inherent in such circumstances for anyone in a loving and committed relationship - those who also held a religious belief in the particular sanctity of marriage, arising from the sacrosanct nature of vows made before God, face a particular disadvantage?
  1. Second, in answering that question, it was unhelpful for the ET to consider the further hypothetical possibility as to what the Claimant, or others sharing her belief, might have done had their spouse not repented. That was not the factual scenario it had to consider and it confused the reasoning. Had it been a relevant factual addition, it would have had to be applied to both groups - not solely that within which the Claimant fell - and, again, the question asked whether those with a religious belief in the sanctity of marriage vows faced a particular disadvantage?
  1. Third, the focus on the general disadvantage suffered by those falling within each of the comparative groups failed to have proper regard to the statutory requirement, which is to ask whether those falling within the same group as the Claimant, sharing the relevant protected characteristic, faced a particular disadvantage. A PCP of neutral application may be seen to give rise to a general disadvantage for all concerned (e.g. the requirement to take a test or to work anti-social hours); that does not mean that it does not give rise to a particular disadvantage to those sharing a certain protected characteristic.
  1. I have considered carefully Mr Grundy's broader submission that I should take it that the ET found the Claimant failed to discharge the burden of proof upon her, but I am not satisfied that is what is being said at paragraph 6.12 absent the ET's erroneous approach to the collective comparison exercise. The ET found the Claimant had not established her case because it failed to ask the right question: it focused on the disadvantage of the dismissal. It did not ask whether the election itself might have given rise to a particular disadvantage (all other things being equal) for those with a religious belief in the sanctity of marriage vows.
  1. Having concluded that the ET erred in its approach to this issue, the question arises whether I must remit this matter to the ET for reconsideration? I am satisfied that I need not; there is, in truth, only one answer. Comparing two groups, both comprising individuals in long-term, loving and committed relationships, facing the same difficult circumstances as arose in this case and given the choice between remaining with their husband/partner or their career but with one group also holding a religious belief in the sanctity of their marriage vows, I conclude the ET was bound to hold that the latter had an additional burden; a particular disadvantage. This was one of those cases (recognised by the ECHR Code of Practice) where the PCP was intrinsically liable to disadvantage a group with a particular protected characteristic.
  1. Specifically, given the findings the ET had made as to the Claimant's belief - the tensions that she suffered given the difficulties arising from her belief and the election forced upon her in the circumstances in which she was placed - that would inevitably mean that there would be a particular (collective) disadvantage for others holding the same belief. The finding as to the Claimant's belief, and the particular disadvantage to which this gave rise, answered the question of disadvantage on a collective level as well: once the ET had found a sufficiently close nexus with the relevant belief - which it had in its findings in respect of the Claimant's own case - it was bound to find that the members of the group sharing that belief inevitably faced an additional dilemma of conscience.
  1. In saying that, I do not suggest that any less respect should be given for those who are in a loving and committed relationship (whether married or not) but who do not share the same view as the Claimant as to the sanctity of marriage vows; I am simply recognising that, in these circumstances, those sharing the Claimant's belief would suffer a particular disadvantage given the crisis of conscience they would face. Equally, I recognise there may be other forms of belief that could give rise to a particular disadvantage in the same circumstances. That is a hypothetical scenario that was not before the ET and is not before me. It is, however, saying no more than that particular disadvantage might be suffered by different groups as a result of their particular beliefs.
  1. Finally, I turn to the question of justification, the second point on the cross-appeal. I can take this shortly, because the reality is that there was no evidence before the ET to show that dismissal was a proportionate means of achieving the legitimate aim identified. The guidance to which Mr Grundy has taken me establishes the legitimate aim - the protection of safeguarding of children in a school environment - but that is what the ET found (see paragraph 6.14 of its Reasons). The question was whether it was proportionate to dismiss the Claimant (as opposed to adopting some other alternative to achieve that aim). The ET expressly found that the Respondents had not considered alternatives when addressing the unfair dismissal case. That said, it had been open to the Respondents to adduce evidence to demonstrate that dismissal was objectively justified in these circumstances, even if no consideration had been given to alternatives at the time. They did not. Apart from generally asserting that there were grounds to support the decision, Mr Grundy has accepted that he cannot show me anything that would contradict the ET's conclusion that it had been provided with no evidence on this question.
  1. Equally, the Respondents do not contest Mr O'Dair's observation that there was no evidence (and no relevant finding of fact) as to a lack of insight on the Claimant's part. All that being so, this ground of cross-appeal must also fail.
  1. I therefore allow the appeal and set aside the ET's dismissal of the indirect belief discrimination claim, substituting a finding that it is allowed. I further dismiss the cross-appeal.

Published: 16/05/2016 10:48

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