Thinking Anglicans

Employment Appeal Tribunal judgement in Pemberton case

on Wednesday, 7 December 2016 at 1.46 pm by Simon Sarmiento
categorised as Church of England, equality legislation

Updated with diocesan press release

The Employment Appeal Tribunal has today issued its judgement in the case of The Revd Canon Jeremy Pemberton versus the Acting Bishop of Southwell & Nottingham, The Rt Revd Richard Inwood.

The full text – approaching 20,000 words – of the judgement can be found here (.doc format), or over here (.pdf format) or here as a web page.

There is a summary included in the full text which is reproduced below the fold. Note that the cross-appeals from the Church of England were also rejected by the court.

Here is a press release from Jeremy Pemberton:

Statement after Employment Appeal Tribunal ruling

I would like to thank HHJ Eady QC for the obvious care that she took to consider properly the novel and complex issues of law raised by my appeal. The result is, obviously, not the one my husband and I had hoped for. I appreciate that this case was a source of hope for many people and I am grateful that the judge has recognised its significance and indicated that its importance warrants permission to appeal to the Court of Appeal.

I am now going to take some time to consider the lengthy judgment with my husband, and we will decide on the best way forward, having taken advice from my lawyers. I would like to thank Laurence for his unwavering love and support throughout this process, my legal team of Sean Jones QC, Helen Trotter, the Worshipful Justin Gau, and Susanna Rynehart of Thomson Snell & Passmore – all of whom have been acting pro bono since 2015 – my family, friends and all those who have supported me thus far. I will not be making any further comment at present.

Here is a press release from the Diocese of Southwell and Nottingham:

Employment Appeal Tribunal ruling

For the second time, a tribunal has found in favour of the former Acting Diocesan Bishop, the Rt Revd Richard Inwood, on all the claims made against him by Jeremy Pemberton.

The Employment Appeals Tribunal in London upheld the decisions made by the Employment Tribunal held in Nottingham last year.

A spokesperson for the Diocese of Southwell & Nottingham said: “Churches across the diocese continue to offer a generous welcome to people from all backgrounds and we remain fully engaged in the Church’s exploration of questions relating to human sexuality.

“The Church of England supports gay men and women who serve as clergy in its parishes, dioceses and institutions. It has no truck with homophobia and supports clergy who are in civil partnerships, as set out in the House of Bishops guidelines in 2006.

“We recognise that it has been a long and difficult process for all those concerned, and we hold them in our thoughts and prayers.”

SUMMARY

SEX DISCRIMINATION – Marital status

HARASSMENT

Discrimination – marital status – sexual orientation

Qualifications bodies – relevant qualification – sections 53 and 54 Equality Act 2010

Exceptions from liability – religious requirements relating to marriage – schedule 9 paragraph 2 Equality Act 2010

Harassment – section 26 Equality Act 2010

The Claimant is a Church of England Priest who married his long-term partner. This was a marriage between two persons of the same sex, made permissible by virtue of the Marriage (Same Sex Couples) Act 2013, the enactment of which the Church of England had opposed. As a result of this marriage, the Respondent revoked the Claimant’s Permission to Officiate (“PTO”) and refused to grant him an Extra Parochial Ministry Licence (“EPML”), which he needed to be able to take up a post as Chaplain in an NHS Trust. The Claimant brought ET proceedings, complaining of unlawful direct discrimination because of sexual orientation and/or marital status and of unlawful harassment related to sexual orientation, his claims being brought under section 53 Equality Act 2010 (“EqA”) which applies to qualifications bodies, as defined by section 54(2) EqA. The Respondent denied he was a qualifications body but, in the alternative, contended that any relevant qualifications (defined by section 54(3)) were for the purposes of employment for the purposes of an organised religion, falling within the exemption allowed by schedule 9 paragraph 2 of the EqA and he had applied the requirement that the Claimant not be in a same sex marriage because that was incompatible with the doctrine of the Church of England in relation to marriage (“the compliance principle”). The claim of harassment was further denied on its facts.

The ET found the Respondent’s refusal to grant the EPML did fall under section 53 EqA and was a “relevant qualification” within the meaning of section 54. That was not the case, however, in respect of the revocation of the Claimant’s PTO. The ET further held, however, that the EPML qualification was for the purposes of employment for the purposes of an organised religion and the compliance principle was engaged; thus the Respondent was exempt from liability by reason of paragraph 2 of schedule 9 of the EqA. As for the harassment claim, although the Claimant was caused distress by the Respondent’s conduct, which he found humiliating and degrading, this did not amount to harassment. Context was everything. The Claimant would not have experienced that (admittedly, unwanted) conduct if he had not defied the doctrine of the Church. Moreover, the Respondent had acted lawfully pursuant to schedule 9; it would be an affront to justice if his conduct was found to constitute harassment.

Upon the Claimant’s appeal and the Respondent’s cross-appeal.

Held: dismissing both the appeal and cross-appeal

The ET had correctly held that the EPML was a relevant qualification (and the Respondent thus a qualifications body) for the purposes of sections 53 and 54 EqA; the Respondent’s cross-appeal against this finding was dismissed. Equally, however, the ET had been entitled to find that the PTO was not a relevant qualification: it would not have “facilitated” the grant of the EPML on the facts of this case; it was the Claimant’s lack of “good standing” within the Church of England that underpinned the Respondent’s decision in respect of both.

The ET had further reached a permissible conclusion that the qualification was for the purposes of employment for the purposes of an organised religion, notwithstanding that the employer would have been the NHS Trust and not the Church. The Trust required its Chaplain to have an EPML for the purpose of carrying out the ministry of the Church of England; that was the purpose of the qualification and the employment. As for the doctrines of the Church, this referred to the teachings and beliefs of the religion and the ET had been entitled to find these were as stated by Canon B30 (“marriage is … a union … of one man with one woman …”), evidenced, in particular, by the House of Bishops’ Pastoral Guidance on Same Sex Marriage. The Respondent had applied a requirement that the Claimant not be in a same sex marriage so as to comply with the doctrines of the Church; it was not fatal to the ET’s conclusion in that regard that a different Bishop might not have done the same.

As for the harassment claim, the ET had permissibly found that the particular context of this case was highly significant and meant that it was not reasonable for the Respondent’s conduct to have the effect required to meet the definition of harassment under section 26 EqA. The Claimant had been aware that his marriage would mean that he would not be seen as in “good standing” within the Church of England. The Respondent’s decision was exempt from liability by reason of schedule 9 and there were no aggravating features arising from his decision or its communication. These were relevant factors to which the ET was entitled to have regard.