In Pendleton v Derbyshire County Council and the Governing Body of Glebe Junior School, Mrs Pendleton was a long-serving teacher with an exemplary record. Her husband, a Headmaster of another local school, was convicted of making indecent images of children and voyeurism, for which he was sentenced to ten months’ imprisonment. 

Pendleton elected to remain with her husband because of her religious belief. She believed that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith (Anglican Christian). Therefore, within the context of “for better or worse”, she would stay with her husband, provided she was satisfied he had demonstrated unequivocal repentance. 

The employer applied a provision, criteria or practice (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 because continuing to support the husband could be seen as condoning his behaviour. Pendleton was therefore dismissed because she had chosen to maintain a relationship with her husband, her suitability to carry out the safeguarding responsibilities of her role had been eroded and the choices she had made in her personal life were in direct contravention to the ethos of the School.

An employment tribunal (ET) upheld Pendleton’s unfair dismissal claim as the employer had not been able to make good either reason relied on for the dismissal (conduct or some other substantial reason), 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.

The ET, however, rejected Pendleton’s indirect discrimination claim. The ET decided that the PCP did not constitute a particular disadvantage to a group of Christians. Pendleton would have been dismissed irrespective of whether she held a religious belief in the sanctity of her marriage vows. The employer had not argued a justification defence, but if it had, the ET would have found in the alternative that dismissal was not a proportionate means of achieving the legitimate aim of protecting and safeguarding schoolchildren.

The EAT upheld Pendleton’s appeal. The ET had erred in law in finding that the PCP had no particular disadvantage to Christians as a group.  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. The ET’s findings as to the nature of Pendleton’s belief meant that the PCP identified was intrinsically liable to particularly disadvantage a group sharing Pendleton’s Christian belief and she, as an individual, had been subjected to that disadvantage.  The ET’s decision was therefore set aside.

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