Mrs Pendleton was a teacher and her husband a headteacher at different local schools. He was convicted of making indecent images of children and of voyeurism, and was sentenced to ten months' imprisonment. After his arrest, she left the marital home and took leave from work, with an initial assurance from her own headteacher that her job would remain open. In January 2013, a Local Authority Designated Officer (LADO) meeting confirmed that there was no evidence that she had had known anything about the matters for which her husband had been arrested; she then went on sick leave and her CRB certificate was re-issued. Meanwhile, though not condoning her husband's actions, she decided that, consistent with her marriage vows, she would stay with him provided she was satisfied that he had demonstrated unequivocal repentance. Subsequently, however, a further LADO meeting in March 2013 decided that it was not appropriate for an employee to return to post if their partner had been convicted of offences and they continued to support them, but should Mrs Pendleton decide to leave her partner she would be supported. At a meeting in April she confirmed that she intended to stay with her husband, in accordance with her marriage vows, following which she was charged with potential gross misconduct. In August 2013 she was suspended and at a subsequent hearing was summarily dismissed because she had chosen to maintain a relationship with her partner who had been convicted of making indecent images of children and of voyeurism.

Before the Employment Tribunal (ET), the respondents had contended that the reason for her dismissal had been conduct or some other substantial reason. The ET had concluded, however, that the real reason was the respondents' view that Mrs Pendleton had exercised poor judgment in electing to stand by her husband despite him being a convicted sex offender. That was not a substantial reason to justify dismissal: it did not relate to her own conduct and the respondents had failed to prove a potentially fair reason. Even if that conclusion were incorrect, the dismissal had been unfair for the purposes of section 98(4) of the Employment Rights Act 1996. The decision to dismiss had been wholly unreasonable and the unfair dismissal claim therefore succeeded; because the claimant had not been guilty of misconduct, her claim of wrongful dismissal also succeeded.

As to her claim of indirect discrimination, however, although the ET had accepted that she held a belief for the purposes of section 10(2) of the Equality Act 2010 that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith, she would have been dismissed irrespective of that belief; and those who shared her religious convictions were at no greater or lesser risk of dismissal than those who simply chose to stand by their partner or husband. Her complaint of indirect discrimination therefore failed. However, had it been necessary to consider the question of proportionality, the ET would have found that the respondents had failed to show that the dismissal was a proportionate means of achieving a legitimate aim. Mrs Pendleton appealed on the indirect discrimination point and the respondents cross-appealed.

Before the Employment Appeal Tribunal it was argued for the claimant that the ET had confused the neutral application of the provision, criterion or practice (‘PCP’) with its impact, and that it had failed to apply the principle that a PCP applying equally to believers and non-believers might particularly disadvantage believers because the required conduct was contrary to their religious beliefs: a PCP that required a religious believer to act contrary to conscience would satisfy the particular disadvantage test. The respondents had known that Mrs Pendleton was a practising Anglican; putting her in a position where she might have to act contrary to her religious beliefs amounted to a disadvantage contrary to paragraph 4(10) of the Equality and Human Rights Commission's Code of Practice. The respondents contended that the ET had properly directed itself in accordance with section 19 of the Equality Act 2010: those who believed in the sanctity marriage and those in committed relationships who did not would have faced the same choice between their career and their spouse or partner – and the same disadvantage. The ET had been wrong to find that the PCP was a policy and had erred in law in failing to determine whether or not the claimant had established that the respondents had engaged in a practice, as pleaded. Moreover, they would have treated anybody else in the same way, whether married, unmarried but living with someone as a partner, or simply cohabiting but supporting someone with convictions for sexual offences against children.

On the policy/practice point, HHJ Eady noted that ‘policy’ was not mentioned in section 19 of the Equality Act 2010; however, she considered that policy was capable of comprehending a practice and that identifying a practice in that way did not prejudice the respondents. The ET had been entitled to conclude on the evidence that the respondents' policy or practice was to dismiss any employee in the claimant's position. The ET had made a permissible finding that the respondents were adopting and applying a policy or practice that they would apply again should the circumstances arise.

As to disadvantage under section 19 of the Equality Act 2010, HHJ Eady decided that, although the ET had erred in its approach, she should not remit the matter for reconsideration. Comparing two groups, one religious and another not, she concluded the ET was bound to hold that the former had an additional burden and a particular disadvantage: ‘This was one of those cases … where the PCP was intrinsically liable to disadvantage a group with a particular protected characteristic’. As to justification, there was no evidence before the ET to show that the dismissal had been a proportionate means of achieving the legitimate aim identified. The appeal was allowed on the indirect belief discrimination claim; the cross-appeal was dismissed. [Frank Cranmer]