Pemberton v Inwood

A permission to officiate was not a relevant qualification merely because it and an extra-parochial ministry licence depended on the same criterion of good standing. The latter licence was, however, a relevant qualification because it authorised and vouched for a minister’s status for a chaplaincy vocation.

For Schedule 9 to the Equality Act 2010, employment may be for the purposes of an organised religion although the employer is a secular body, where ministerial duties are a central purpose of the role. “Doctrines” includes the religion’s teachings and beliefs. In assessing harassment, the Schedule 9 exemption is not imported as a defence, but its lawful application is a material circumstance when deciding whether the alleged effect was reasonable.

An ordained Church of England priest married his same-sex partner. The Bishop revoked his permission to officiate and refused an extra-parochial ministry licence required for a hospital chaplaincy and bereavement-management post. The priest was consequently not appointed.

The Employment Tribunal dismissed claims for direct discrimination and harassment. It held that the permission to officiate was not a relevant qualification, but the licence was; that the Bishop could rely on the Schedule 9 religious exception to the Equality Act 2010; and that the conduct was not harassment. The Employment Appeal Tribunal dismissed both parties’ appeals. The priest appealed and the Bishop cross-appealed on the qualification issue.

The central issues were the meaning of relevant qualification and qualifications body, the scope of Schedule 9 paragraph 2, and whether a lawfully exempt decision could nevertheless amount to harassment.

1. Appeal and cross-appeal dismissed. The Court upheld the Employment Appeal Tribunal’s decision.

2. The permission to officiate was not a relevant qualification under sections 53 and 54 of the Equality Act 2010. On the Employment Tribunal’s findings, it neither depended upon nor facilitated the extra-parochial ministry licence. Both decisions reflected the Bishop’s assessment of good standing. A shared criterion did not make the permissions interdependent. The situation was therefore different from British Judo Association v Petty [1981] ICR 660.

3. The extra-parochial ministry licence was a relevant qualification and the Bishop was a qualifications body. The licence was required for the paid chaplaincy vocation. It authorised the holder to act as a minister and signified to the NHS Trust and the public that the holder had the requisite Church status. The fact that an individual bishop made the decision did not prevent it being made by reference to objective criteria or prevent the licence from being an authorisation.

4. The Schedule 9 paragraph 2(3) exception applied. The hospital role was, in material part, for the purposes of organised religion because it required a properly licensed Church of England minister to perform religious duties. That the NHS Trust employed the appointee and that the role also had secular functions did not alter that conclusion.

5. For paragraph 2(5), “doctrines” meant the teachings and beliefs of the religion, not only matters which the Church itself classified in a narrower technical sense as doctrine. Canon B30 and the House of Bishops’ Pastoral Guidance established the Church’s teaching that marriage was between one man and one woman and that clergy entering a same-sex marriage acted inconsistently with it. No express canonical prohibition or prescribed sanction was required. The refusal was applied so as to comply with those doctrines.

6. The Schedule 9 exception did not itself bar a harassment claim. However, under section 26(4), the tribunal had to consider the claimant’s perception, all the circumstances, and whether it was reasonable for the conduct to have the alleged effect. In the absence of aggravating conduct beyond making and communicating the lawfully exempt decisions, it was not reasonable to treat the decisions as violating dignity or creating the proscribed environment. The priest knew the Church’s position and the likely consequence for his standing.

• Court of Appeal (Civil Division) dismissed the priest’s appeal and the Bishop’s cross-appeal: [2018] EWCA Civ 564.
• Employment Appeal Tribunal (HH Judge Eady QC) dismissed the priest’s appeal and the Bishop’s cross-appeal: Appeal No UKEAT/0072/16.
• Employment Tribunal dismissed the claims in a determination promulgated on 28 October 2015.