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Employment Case Law Update: Pemberton v Inwood

May 31, 2018

Canon Pemberton is a Church of England Priest in a same-sex relationship.  When the Marriage (Same Sex Couples) Act 2013 came into force it was opposed by the Church of England. Canon Pemberton later became engaged, and informed several bishops of his intent to marry and received feedback stating that marrying his same-sex partner wouldn’t be appropriate. Despite objections from the Church, Canon Pemberton got married in April 2014.

He later applied to the Sherwood Forest Hospitals NHS Trust (the Trust) to become a Chaplain and Bereavement Manager. He was offered the position subject to various conditions, one of which was that he held an Extra Parochial Ministry License (EPML) from the Bishop. The Bishop wrote to the Trust refusing to grant the EPML, explaining that Canon Pemberton had acted inconsistently with his vows and failed in his duty to model his life on the Church’s teachings.

Canon Pemberton brought claims to the Employment Tribunal (ET) against the Bishop for direct discrimination and harassment under the Equality Act 2010. The Bishop argued:

  1. That he was not a qualifications body so the Equality Act 2010 didn’t apply to him when he refused to grant the EPML.
  2. That the relevant qualifications were for the purpose of an organised religion. The Equality Act 2010 states that, where the employment is for an organised religion, the employer or qualifications body may set an occupational requirement regarding, amongst other things, a requirement that the applicant not be married to a person of the same sex. It must be shown that the requirement is being applied to comply with the doctrines of the religion.

The ET found that the Bishop was a qualifications body and refusal to grant the EPML was potentially discriminatory, but the religious occupational requirement defence still applied so his actions were not unlawful.

The case was appealed to the Employment Appeal Tribunal (EAT) which agreed with the ET and confirmed, although the Trust itself was not a religious organisation, the position was centred on an organised religion, and the EPML was therefore a condition of that employment. However, they also agreed that the religious occupational requirement defence applied to the direct discrimination claim.

The case was then taken to the Court of Appeal, which agreed with the ET and the EAT on these points. Although the Trust was a hospital, the EPML was still needed for the purposes of the employment. The religious occupational requirement defence could therefore be applied to the direct discrimination claim.

This case has provided useful guidance on the defence of the organised religion occupational requirement – confirming that the focus is on the employment and not necessarily on the employer. It is not imperative that the employer be a religious organisation, rather the employment for which the employee is being hired must be focused around an organised religion.

This article is from our weekly Employment Law Newsletter published on 31/05/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.