A recent case from the Employment Appeal Tribunal has brought into sharp focus how indirect discrimination set traps for the unwary employer. The case involved a schoolteacher who was dismissed after her husband had been jailed for sex offences relating to children. The School that employed her lost an unfair dismissal case as it did not have a legally-permitted fair reason to dismiss her as a long-serving employee. Whilst the School was found to have approached the case with a ‘closed mind’ and was found to have acted as if dismissal was ‘automatic’, which would have made the dismissal unfair regardless of the situation, the case does highlight some points:
1. The employer needed to establish that the situation it faced, a teacher who refused to abandon her relationship with a sex offender, was sufficiently serious to justify dismissal. No evidence had been produced by the employer to justify a conclusion that the teacher herself was a risk to children, and this would have had to have been done before any decision on dismissal (or any other action) was taken. Clients in the education sector may note that there were no safeguarding issues raised in respect of the teacher herself, and if there had been, the outcome may well have been different.
2. There was a successful claim of indirect religious discrimination, as the School had required the teacher to choose between maintaining her marriage vows, which, because of her faith, she held to be particularly important, and continuing to work for the School. Whilst it may seem that there was one rule for employees who hold strong views as to the importance of marriage vows and are married, and those without particularly strong views on marriage and/or who are not married, the principle here is that where a ‘policy’ is adopted by an employer, it needs to be considered if that ‘policy’ (in law called a ‘practice’) would have a particular impact on people who hold certain views based on faith or belief (not simply being religious) and, if there is a particular impact, then the employer would have to justify its practice.
3. If someone who works with children is subject to a disqualification order because they live with a person disqualified from childcare [e.g. in England under the Childcare (Disqualification) Regulations 2009], and that person has not got a waiver from disqualification, then the outcome of a case like this would be likely to be very different, as an employer would have a legal justification for ending employment, and provided that a fair procedure was followed for an employee with Unfair Dismissal rights, then it would be likely that the outcome would be a fair dismissal and any indirect discrimination would be ‘justified’ as resulting from compliance with Childcare regulations which have the force of law.