Some cases just make you uneasy. This is one of them.  It revolves around a Mrs Pendleton who was faced for reasons which are not strictly relevant with the requirement by her employer that she either divorce her husband or lose her job.

OK then, not strictly relevant but sufficiently unusual to warrant a little background. Mrs Pendleton was a teacher at Glebe Junior School in Derbyshire, married to another teacher at a neighbouring school.  Completely out of the blue for her, it was found, the husband was arrested on some pretty grim child sex charges, admitted them and was jailed for 10 months.

Mrs Pendleton found her marriage vows obviously severely tested but chose to stand by her husband (as in, not divorce him, rather than deny or condone in any way what he had done). No suggestion arose at any stage of any personal knowledge or involvement on her part in the offences.

Because she chose not to divorce her husband Mrs Pendleton was summarily dismissed by the School. Her wrongful and unfair dismissal claims succeeded easily, as they were pretty much bound to do.  However, she also chose to claim indirect religious discrimination.  This required her to show that though the School would have dismissed anyone who refused its instruction to divorce her husband in the same circumstances, that instruction caused her “particular disadvantage” because of her faith.

Mrs Pendleton was a staunch Anglican Christian and as such, she said, saw her marriage vows as sacrosanct. The instruction to breach them, even where it would have been instantly understandable within her faith had she done so, therefore placed her under a disadvantage additional to that of a non-religious person in an otherwise identically loving relationship, whether formally married or not.  It is more difficult for me to divorce because of the commitment I made to my God than it is for another who made that commitment only to him/herself, in other words.  Therefore the “particular disadvantage” requirement within the indirect discrimination rules is satisfied, she said.

Mrs Pendleton’s claim was upheld largely on that basis. Though rejected at the Employment Tribunal stage, she succeeded on appeal: “Comparing two groups, both comprising individuals in long-term, loving and committed relationships ….and given the choice between remaining with their husband/partner or their career, but with one group also holding a religious belief in the sanctity of their marriage vows, I conclude the ET was bound to hold that the latter had an additional burden; a particular disadvantage”.  And then this also from the EAT – “In saying that, I do not suggest that any less respect should be given for those who are in a loving and committed relationship… but who do not share the same view as [Mrs P] as to the sanctity of marriage vows; I am simply recognising that …those who share [that] belief would suffer a particular disadvantage given the crisis of confidence they would face”.

With respect, this takes the Employment Appeal Tribunal into some very difficult waters, since it is in effect saying that a person of Mrs Pendleton’s faith is (or rather, feels) more bound by his/her wedding vows than someone else. Where is the evidence for that?   There was nothing put before the Employment Tribunal to show that religious people find it harder to break promises or commitments than those bound “only” by love or contract or honour or duty or self-esteem.  There was nothing to show that non-Anglican Christians would be any less tortured (or have any lesser “crisis of confidence”) about the ultimatum presented by the School in this case.   Not all Anglican Christians would have stood by their spouse in those circumstances.  Equally, maybe some non-religious wives would have filed papers on finding the dreadful truth about hubby’s leisure activities, but others would not.   Who says that they would not regard themselves as equally bound by a commitment made in honour to themselves, their partner and all their witnesses on the day?   The Tribunal had no evidence on this, nor could there ever be such evidence without detailed investigation into exactly why some people break some promises and others do not. What says that a religious belief is additional to one’s “normal” views, rather than part of them?

At its most basic, this case endows a promise made on oath with a weight above that of a promise to do exactly the same thing made by, say, ordinary contract or public affirmation, however untrue the oath and however honourable and straight that affirmation. It says that promises made before one’s God are automatically harder to break than those made to yourself or others, even in circumstances (as here) where there could have been no possible criticism of Mrs Pendleton had she taken that course.  Taken to its end, this decision suggests that in an otherwise perfectly balanced question of fact, a witness swearing on a religious text should for that reason alone be believed over someone who does not.  That would be an extraordinary conclusion.

Even if not taken to its logical end, the outcome here is that because of her faith, Mrs Pendleton had and won a claim which a non-religious person treated identically and suffering identically from it would not have. That just does not sound right to me.