04 April, 2018
In the recent case of Pemberton v Inwood  EWCA Civ 564, the Court of Appeal held that a Church of England priest was not subjected to unlawful sexual orientation discrimination when he was refused a ministry licence on the ground of his same-sex marriage.
The Claimant, Canon Pemberton, married his same sex partner on 12 April 2014. Following his marriage, he applied for a salaried position as Chaplain and Bereavement Manager at Sherwood Forest Hospitals NHS Trust ("the Trust"). He was offered the position provided he held an Extra Parochial Ministry Licence (EPML).
On 2 June 2014, Mr Pemberton's Permission to Officiate (PTO) was revoked by the Bishop with immediate effect, on the grounds that he was in breach of his duty of canonical obedience by entering into a same sex marriage. In addition, the Bishop wrote to the Trust refusing to grant Pemberton an EPML. The letter to the Trust claimed that by entering into a same sex marriage, Pemberton had acted in a way that was inconsistent with his ordination vows and the canonical duty of all clergy to model the Church's teaching in their lives.
Mr Pemberton brought a claim in the employment tribunal for direct discrimination because of sexual orientation and/or marriage pursuant to sections 13 and 53 of the Equality Act 2010 ("the Act"), and harassment related to sexual orientation pursuant to s.26.
S.53 of the Act states that a qualifications body must not discriminate against a person by deciding not to confer a relevant qualification on that person or by withdrawing a qualification from them. Furthermore, a qualifications body must not, in relation to the conferment by it of a relevant qualification, harass a person who holds or applies for the qualification.
However, there is an exception under paragraph 2, Schedule 9 the Act where the employment is "for the purposes of an organised religion". Where the employment is for the purpose of an organised religion, the employer or qualifications body may include a requirement that the applicant not be married to a person of the same sex should that be necessary to comply with the doctrines of the religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
The Employment Tribunal found that the Bishop's refusal to grant the EPML was caught by S.53, and was based on sexual orientation. However, the Tribunal found the exception in Schedule 9 applied as the EPML was a qualification for employment 'for the purposes of an organised religion', and was refused in order to comply with the Church's doctrine on same-sex marriage. The claim for discrimination therefore failed.
As for harassment, the Tribunal found that this claim could not succeed since the Bishop's actions were lawful and there were no aggravating factors.
Mr Pemberton's subsequent appeal to the Employment Appeals Tribunal was also dismissed. The EAT rejected his assertion that the Tribunal had applied the Schedule 9 exception too broadly, as the actual employer was the Trust and not the Church. The EAT confirmed that the exception is not limited to employment within a religious organisation, as it is not the nature of the organisation that is relevant but the purpose of the employment. It was an essential requirement of the employment that Mr Pemberton be able to minister as a Church of England priest, and as a result the EPML was relevant to employment 'for the purposes of an organised religion'. The EAT also upheld the Tribunal's conclusion that there was no harassment as the simple making and communication of a decision that fell within Schedule 9 could not amount to harassment in the absence of some aggravating feature.
Following the decision of the EAT, Mr Pemberton appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal. In concurrence with the EAT, the Court of Appeal stated that although the EPML was a condition of employment with the Trust, the Trust intended to employ a properly accredited minister of religion and therefore required a clergyman who was properly licensed and approved by the Bishop. If, as Mr Pemberton argued, the exception could only apply to employment with the Church itself, the exception would have no purpose at all.
As for the harassment claim, the Court agreed with the EAT that, in the absence of aggravating features, it could not be reasonable for conduct that otherwise falls within the Schedule 9 exception to constitute harassment.
The Court concluded that whilst it understood Mr Pemberton's profound upset at the Church's stance on same-sex marriage, "if you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be".
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