EAT 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.
Eady QC HHJ
[2016] UKEAT 0238 – 15 – 2903
Bailii
Equality Act 2010 10
England and Wales
Employment
Updated: 10 November 2021; Ref: scu.564200