Pemberton v Inwood

The Court of Appeal dismissed the appeal and cross-appeal. It held that an Extra Parochial Ministry Licence (EPML) is a "relevant qualification" within the meaning of sections 53 and 54 of the Equality Act 2010 because it is an authorisation that is required for, and facilitates, the chaplaincy vocation. A Permission to Officiate (PTO) was not a relevant qualification on the facts because it did not itself facilitate the paid employment and was not interdependent with the EPML. The bishop qualified as a "qualifications body" for the EPML. The court also held that the bishop could rely on the Schedule 9(2) exception to justify the refusal to grant the EPML because the requirement not to be married to a same-sex partner was applied so as to comply with the doctrines of the Church of England. Finally, the court concluded that the lawful revocation of the PTO and refusal of the EPML, absent additional aggravating features, did not amount to harassment under section 26 of the Equality Act 2010.

Background and parties:

• The appellant, the Reverend Canon Jeremy Pemberton, an ordained Church of England priest, married his same-sex partner in April 2014. The respondent, the Right Reverend Richard Inwood, Acting Bishop of Southwell and Nottingham, revoked the Canon's Permission to Officiate (PTO) and declined to grant an Extra Parochial Ministry Licence (EPML) required for a paid chaplaincy post at Kingsmill Hospital. The Canon brought claims of direct discrimination (sections 13 and 53 Equality Act 2010) and harassment (sections 26 and 53) in the Employment Tribunal; those claims were dismissed and the Employment Appeal Tribunal (EAT) dismissed the appeal. This is an appeal to the Court of Appeal.

Nature of the claim / relief sought: The Canon sought remedies for direct discrimination and harassment arising from the revocation of his PTO and the refusal to grant an EPML, contending that those acts were because he was married (protected characteristic: marriage/civil partnership).

Issues framed:

1. Whether the PTO and/or the EPML are "relevant qualifications" under section 54 and whether the bishop is a "qualifications body" for the purposes of section 53.
2. Whether the Schedule 9 paragraph 2 exception to the Equality Act 2010 applies, i.e. whether the EPML and the requirement not to be married to a same-sex partner were for the purposes of an organised religion and applied so as to comply with the religion's doctrines.
3. Whether the revocation of the PTO and the refusal of the EPML, and the communication of those decisions, constituted harassment under section 26 without further aggravating features.

Court's reasoning (concise):

• On relevant qualifications: the court accepted the Employment Tribunal's factual finding that a PTO does not itself conduce to paid employment and was not interdependent with the EPML; accordingly the PTO was not a "relevant qualification" on these facts. The EPML was required by the Trust and thereby facilitated engagement in the chaplaincy vocation, so it was a "relevant qualification" and the bishop was a qualifications body when granting or withholding it.
• On Schedule 9 defence: the court construed "doctrines" as the teachings and beliefs of the religion in a broad sense and accepted that Canon B30 and the House of Bishops' Pastoral Guidance established that same-sex marriage conflicted with Church teaching. The withheld EPML was for the purposes of employment "for the purposes of an organised religion" because the post was to involve ministerial duties; the requirement not to be in a same-sex marriage was applied so as to comply with those doctrines, so the Schedule 9(2)/(3) defence was available.
• On harassment: section 26 requires an objective assessment of reasonableness. Where conduct falls within the Schedule 9 defence and is lawfully applied, absent additional aggravating features the making and communication of that lawfully justified decision would not reasonably be regarded as having the proscribed effect. The tribunal was entitled to find that, on the facts and given prior discussions and the Canon's awareness of the Church's position, it was not reasonable for the Canon to have the section 26 reaction he claimed.

Procedural posture: appeal from the Employment Appeal Tribunal (UKEAT/0072/16), which had itself upheld the Nottingham Employment Tribunal decision (determination dated 28 October 2015).

The appeal and the cross-appeal were dismissed. The Court of Appeal agreed with the Employment Tribunal and the Employment Appeal Tribunal that the EPML is a relevant qualification and the bishop is a qualifications body; the PTO was not a relevant qualification on the facts. The Schedule 9(2)/(3) exception applied because the EPML was for the purposes of employment "for the purposes of an organised religion" and the requirement not to be in a same-sex marriage was applied so as to comply with the doctrines of the Church of England. Consequently the lawful revocation of the PTO and refusal to grant the EPML, without further aggravating features, did not amount to harassment under section 26 of the Equality Act 2010.

Appeal to the Employment Appeal Tribunal from the Nottingham Employment Tribunal (determination dated 28 October 2015). EAT appeal No: UKEAT/0072/16 (Her Honour Judge Eady QC) dismissed. Appeal to the Court of Appeal from the EAT decision; Court of Appeal judgment [2018] EWCA Civ 564.