Tuesday, May 17, 2016

Christian Wins at the EAT!

There has been a developing narrative over recent years of Christian groups alleging that believers are discriminated against in the workplace.

Analysis of the individual cases in question generally does not support this claim and the Employment Appeal Tribunal has now handed down a Judgment overturning the first instance decision and deciding that  a devout Christian WAS discriminated against.

Mrs Pendleton was a teacher with an unblemished record. Unfortunately, her husband, who was Head of another local school, was found to have made indecent images of children and also to have indulged in illegal voyeurism. He went to prison.

There was no suggestion that Mrs Pendleton was in any way involved in her husband's activities and she was completely unaware of them until his arrest.

Mrs Pendleton was a Christian and she regarded her marriage vows as sacrosanct. She went on sick leave from school but made clear that as long as her husband showed that he was repentant she intended to stay with him, having made a commitment before God "for better or worse."

She was informed that if she remained with her husband there would be consequences and, in terms, was given the choice between ending the relationship with her husband or facing disciplinary action. She made clear that she did not wish to give up her job but was not prepared to leave her husband.

As a result she was suspended and asked to attend a disciplinary hearing on the basis that her actions "do not uphold trust in the profession."

She was summarily dismissed and this decision was upheld on appeal.

Mrs Pendleton brought an Employment Tribunal claim for Unfair Dismissal and for indirect religious discrimination. She said that the employer was imposing a policy, namely a requirement that employees end relationships with sex offenders, that put Christians (who believe in the sanctity of marriage) at a particular disadvantage and that the practice was not a proportionate means of meeting a legitimate aim.

The Tribunal found the dismissal to be unfair. The decision making process had been inadequate and the reason for dismissal was not sufficient to justify dismissing an innocent employee with a clean disciplinary record.

The discrimination claim was rejected - the Tribunal said anyone who stood by their partner would have suffered the same fate and that it was also entirely possible that a religious person could have chosen to leave their spouse in this situation despite the marriage vows.

Mrs Pendleton appealed to the EAT. There is a benefit to doing so given that the cap on damages in an Unfair Dismissal case does not apply to a discrimination claim and damages for hurt feelings are also available.

The EAT upheld the appeal. They considered that even though the situation had not arisen before it had clearly been demonstrated that there was a practice or policy of the type which the Claimant alleged.

The Claimant as a religious believer was placed at a particular disadvantage even if some non-believers might have chosen to "stand by their man" as well. It was also no answer to the claim that some believers might have left their spouse if he did not repent.

Having found that there was therefore on the face of it indirect discrimination the EAT considered whether it should send the matter back to the Tribunal or make its own decision, and decided upon the latter. The policy was not a proportionate means of meeting a legitimate aim. The Claimant had been discriminated against.

This illustrates that religious discrimination cases are very fact-specific and need to be carefully analysed. Some you win, some you lose.