Pemberton v Inwood

A qualification is relevant under sections 53 and 54 of the Equality Act 2010 where it objectively confers recognition or approval that is needed for, or facilitates, engagement in a trade, profession or vocation. A religious licence may qualify even when it relates to a particular post and the employer is secular.

The religious exception in paragraph 2 of Schedule 9 applies according to the purpose of the qualification and employment, not the employer’s identity. The requirement must be applied so as to comply objectively with the religion’s teachings or beliefs. In harassment claims, context and reasonableness remain material. A decision protected from direct-discrimination liability will not ordinarily constitute harassment without an aggravating feature.

The Claimant, an ordained Church of England priest, married his male partner. The Respondent revoked his Permission to Officiate and refused an Extra Parochial Ministry Licence required for a chaplaincy post with an NHS Trust.

The Employment Tribunal held that the EPML was a relevant qualification and that the Respondent was a qualifications body, but that the PTO was not. It further held that the religious exception in paragraph 2 of Schedule 9 to the Equality Act 2010 applied, and dismissed claims of direct discrimination and harassment. The Claimant appealed and the Respondent cross-appealed. The central issues concerned the statutory meaning of relevant qualification, the scope of the religious exception, and the harassment claim.

Appeal and cross-appeal dismissed.

1. Relevant qualifications. The PTO was not a relevant qualification. The Tribunal had found that the Respondent would have refused the EPML even if the PTO had not been revoked. The decisions reflected the Claimant’s lack of good standing and were not interdependent so that one facilitated the other.
2. The EPML was a relevant qualification under sections 53 and 54 of the Equality Act 2010. The statutory language is broad and includes recognition and approval. In the context of religious ministry, good standing was an objective and transparent assessment within the Church of England, rather than a capricious personal judgment. A qualification may facilitate engagement in a vocation even if it is specific to a particular post. The Trust stood in the place of the wider public because it relied on the Respondent’s approval.
3. Schedule 9. The EPML was for employment for the purposes of an organised religion, although the employer was an NHS Trust. The essential purpose of the post was to enable the Claimant to minister as a Church of England priest. The relevant question was the purpose of the employment and qualification, not the identity of the employer.
4. “Doctrines” in paragraph 2(5) meant the teachings or beliefs of the religion. The Tribunal was entitled to find that Church of England doctrine, evidenced by Canon B30, the Pilling Report and the Pastoral Guidance, treated marriage as between one man and one woman. It was also entitled to find that the Respondent applied the requirement not to be in a same-sex marriage so as to comply with that doctrine. The possibility that another Bishop might have acted differently did not invalidate the decision.
5. Harassment. Section 26 required separate consideration of unwanted conduct, effect, relation to the protected characteristic, and reasonableness in context. Although the Tribunal’s reasoning was infelicitous and incomplete in places, it was entitled to conclude that the particular context meant the conduct did not reasonably have the proscribed effect. The Schedule 9 exemption did not itself bar a harassment claim, but making and communicating a decision falling within the exemption required an aggravating feature before it could ordinarily constitute harassment. The cross-appeal on the “related to” issue also failed: entering a same-sex marriage was inextricably related to sexual orientation.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal and the Respondent’s cross-appeal from the Employment Tribunal’s judgment sent on 28 October 2015.