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Employee dismissed for refusing to leave her husband who had been convicted of sex offences

Posted by TonyBrownEmploymentSolicitor on July 15, 2016

In the next case, a teacher claimed unfair dismissal and indirect religious discrimination when she was dismissed for refusing to leave her husband after he was convicted of sex offences.  

The Claimant in that case was a teacher. She was also a committed and practising Christian. When her husband was convicted of offences of downloading indecent images of children and voyeurism, her school informed her that it struggled to see how it could support her continued employment if she remained with her husband.

The Claimant said that she did not wish to leave her job and considered she had done nothing wrong. Whilst not condoning her husband's actions, the Claimant said that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith.

After a disciplinary hearing, it was decided that the Claimant should be 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."

The Claimant appealed, but her appeal was unsuccessful.

The Claimant brought tribunal claims for unfair dismissal and indirect religious discrimination

The ET upheld the Claimant’s claim for unfair dismissal but dismissed her indirect discrimination claim, deciding that she had suffered no particular disadvantage because of her religious belief in the sanctity of her marriage vows. It reasoned:

"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."

The EAT allowed the appeal and substituted a finding that the Claimant had suffered indirect religious discrimination.

The EAT ruled that the “disadvantage" required for an indirect discrimination claim does not have to meet any particular threshold. The fact that the school’s policy of dismissing any employee who chose to remain with a person convicted of making indecent images of children would put all employees in that situation at a disadvantage did not prevent there being a particular disadvantage for those sharing the Claimant's religious belief.

The EAT held that on the facts the Claimant was in a group (those holding a belief in the sanctity of marriage vows) that was put at a particular disadvantage by the school’s ‘practice’ of dismissing any employee who chose to remain with a partner convicted of sex offences.

Comment

This was an unusual case of indirect discrimination. Indirect discrimination is concerned with workplace practices and policies which are intended to apply universally but which have the effect of disadvantaging a group of people with a particular protected characteristic. Where such a practice disadvantages an individual with that characteristic, it will amount to indirect discrimination unless the practice can be objectively justified

To succeed with her claim for indirect religious discrimination the Claimant had to identify a policy applied by the school that placed her at a particular disadvantage because of her religious beliefs about the sanctity of marriage. The employment tribunal decided that the Claimant’s school had a policy of dismissing any employee who chose to remain with a person convicted of making indecent images of children and voyeurism. The school might not have had to apply that policy previously but given the school’s evidence that this is how they would respond in these circumstances the tribunal’s conclusion that this was the school’s policy was permissible. This opened the door to the Claimant’s claim that the policy put someone holding her religious belief in the sanctity of the marriage vows at a particular disadvantage resulting in a finding of indirect discrimination.

Disclaimer

This article is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This article is not intended to constitute advice in any specific situation.  You should take legal advice in specific situations and not rely on the information in this article.