Church was entitled to block his chaplaincy under discrimination rules
In the case Pemberton v Inwood, the Employment Appeal Tribunal (EAT) had to decide whether to uphold a claim for sex discrimination and sexual orientation discrimination when a Church of England priest, who had entered into a same-sex marriage, was barred from taking up a chaplaincy job with the NHS.
When same-sex marriage was legalised in the UK in 2013, the Church of England (which had opposed the passing of the new marriage laws) issued guidance to its clergy on the topic, which set out that the “Christian understanding and doctrine of marriage as a lifelong union between one man and one woman remains unchanged”. The guidance also made it clear that it would “not be appropriate conduct for someone in holy orders to enter into a same-sex marriage, given the need for clergy to model the Church’s teaching in their lives”.
Reverend Canon Pemberton married his male partner in 2014. He was then offered a new role as a chaplain at Sherwood Forest Hospitals NHS Foundation Trust, subject to obtaining a licence from Reverend Inwood, acting in his capacity as Bishop of Southwell and Nottingham. Pemberton’s application for the licence was denied on the basis that his same-sex marriage was inconsistent with the Church’s teaching and meant that he was not considered in good standing by the Church.
Pemberton claimed direct discrimination and harassment on the grounds of sexual orientation and/or marital status because his bishop had denied him the licence he needed to carry out the NHS Trust chaplain role because he had married his male partner.
Tribunal and EAT
The clergyman’s legal team claimed the bishop fell within the definition of a ‘qualifications body’ for the purposes of section 53 of the Equality Act 2010. The legislation prevents such bodies from discriminating in connection with conferring qualifications on individuals. The employment tribunal decided that the bishop was a qualifications body within the meaning of the Act and, therefore, that the decision not to grant Pemberton a licence because he had entered into a same-sex marriage was discriminatory, unless an exception in the Equality Act applied.
In order to defeat the claim, the bishop’s lawyers relied on the exception in the Act that allows otherwise discriminatory acts if the employment in question is ‘for the purpose of an organised religion’ and if the requirement imposed by the qualifications body has been put in place to comply with the doctrines of that religion. The bishop’s refusal to grant the licence was found to be covered by this exception and, therefore, lawful. As there were no ‘aggravating factors’ in the bishop’s action, Pemberton’s harassment claim also fell away.
So, Pemberton’s employment tribunal claim failed and his appeal to the EAT was also rejected.
Comment
This decision may appear odd, on the face of it, in that the Church of England was able to block the NHS’s decision to hire Pemberton. It demonstrates, however, the potentially broad scope of the exception in the Equality Act relating to employment for the purposes of an organised religion and, in particular, that it is not necessary for the employer in question to be a religious body for the exception to apply.
As the purpose of Pemberton’s employment by the NHS was to act as a Church of England priest, the bishop was entitled to consider his standing in the light of him entering into a same-sex marriage and to refuse to grant him a licence because of it.
While the case does not have direct relevance to the majority of employers, it should be treated with caution as, in most circumstances, it will be very difficult to show that directly discriminatory behaviour falls within an exception of the Equality Act.
Paul Mander is a partner, and Lauren McLardie an associate, in the employment department at Penningtons Manches LLP
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