Same-sex marriage within the Church of England
Nathan Roberts considers Pemberton v Bishop of Southwell and Nottingham, concerning a priest who was denied a licence to work in the NHS by the Church of England because he had married someone of the same sex.
The case
The Church of England’s opposition to same-sex marriage is a well-known if fraught matter. The Claimant is an ordained priest in the Church of England. He entered into a same-sex marriage in April 2014, and applied for the position of Chaplain within an NHS trust in May 2014. He was offered the role, subject to being issued an Extra Parochial Ministry Licence (an “EPML”) by the Respondent, the Bishop of Southwell and Nottingham.
In June 2014, the Respondent revoked the Claimant’s Permission to Officiate (“PTO”) because of his marriage. This meant that the Claimant was not able to undertake ministerial services, such as delivering sermons. This would not necessarily entail the refusal to issue the Claimant an EPML; however, in July 2014, the Respondent so refused. Consequently, the Claimant could not take up his role at the Trust.
The Claimant brought claims of sexual orientation / marital status direct discrimination and harassment against the Respondent in the Employment Tribunal. The principal issues for the Tribunal were:
Could the Claimant bring a claim against the Respondent qua qualifications body (under the provisions of ss 53 and 54 Equality Act 2010)?
If so, could the Respondent rely on the “compliance principle” defence under schedule 9, para 2 of the same Act? This defence applies if the qualification is for employment for the purposes of an organised religion and if compliance with the “doctrines of the religion” requires that, in this case, a priest is not married to someone of the same sex.
The Tribunal found that the Respondent was a qualifications body in respect of the EPML, but not in respect of the PTO. It further found that the Respondent could, in any event, rely on the compliance principle defence. The Claimant appealed and the Respondent cross-appealed.
HHJ Eady QC (sitting alone) dismissed both the appeal and the cross-appeal.
Is the Church of England a qualifications body?
The EAT noted that the statutory language defining a qualification is broad. In this case, the test the Church applied in granting an EPML was whether the individual was of “good standing”. This was an objective assessment, judged against standards and doctrines, therefore indicating that the Church was granting a qualification. In this regard, the EAT expressly supported the same conclusion previously reached in the first-instance case of Ganga v Bishop of Chelmsford.
Further this standard was held not for the Church’s own needs, but as a mark of a standard facilitating the Claimant’s employment, in this case, with the Trust. The fact the EPML applied only to a specific role (rather than amounting to a general qualification) had no bearing on the matter, given the wording of the statute.
Regarding the PTO: given that holding a PTO was not an essential feature either of being provided an EPML or of taking up the position in question, it was not considered to be a relevant qualification.
Can the Church rely on the compliance principle defence?
In order for this defence to succeed, the Claimant needed to be employed “for the purposes of an organised religion”. Despite the employment resting with the Trust, being able to minister as a priest was essential to the role. The EAT found that the defence applies to employment both in and outside a religious organisation, including this role.
The second issue was whether the Church’s stated position on (same-sex) marriage constituted its “doctrine”. Doctrine was defined as “teachings or beliefs”, rather than anything more narrow. Following substantial authority on the subject, the EAT was resistant to investigating the theological merits of the Church’s position. It was, however, satisfied that Tribunal was permitted to have found that it was the teaching and belief of the Church that marriage was between one man and one woman.
Finally, given that the Claimant’s marriage conflicted with the Church’s doctrines and with his “canonical duty of doctrinal obedience”, the Tribunal was entitled to find that the Respondent could refuse the Claimant his EPML in order to comply with those doctrines. The fact that a different bishop might have decided differently made no difference, the statute allowing for the fact there can be a divergence of belief within the same religious community.
Future cases
The judgment will be a welcome development for clergy members who, by virtue of not being “employed” by the Church, may have been otherwise excluded from discrimination protections (see Sharpe v The Bishop of Worcester [2015]). The scope of the precedent remains to be tested. For example, how it applies to internal Church positions and how the PTO is engaged in such cases will be some of the future questions for tribunals.
The Church’s success at the hands of the compliance principle defence in this case was perhaps not surprising, given its relatively clear position on same-sex marriage. Whether and how the defence may apply in future cases concerning more complex doctrines and/or more typical allegations of discrimination remains open to debate.
The arguments may well be repeated soon in the Court of Appeal, HHJ Eady QC having granted permission to appeal.
John Horan acted for Mr Ganga in Ganga v Bishop of Chelmsford v (1) Chelmsford Diocesan Board of Finance and (2) Bishop of Chelmsford [2015] 3200933/2013 (referred to above) successfully arguing that members of the clergy were protected under the qualifications body provisions of the Equality Act 2010. Nathan Roberts assisted John in the case.