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LEGAL CORNER: Gay Clergyman not given a licence to be a Chaplain was not discriminated against

27th Jan 2017

The overlap between anti-discrimination laws and religious teachings can often give rise to difficult scenarios. The Employment Appeal Tribunal had to deal with one such issue recently, in the case of The Reverend Canon Pemberton v The Right Reverend Richard Inwood.

Mr Pemberton was ordained as a Church of England priest in 1982. He held a number of positions until 2007 when he resigned his parish. It was at this time that he and his wife separated and subsequently divorced. He returned to the ministry in 2008 and was licensed as a community chaplain. Thereafter, Mr Pemberton met and began a relationship with a (male) partner. This did not affect his career, and he progressed to become the Deputy Senior Chaplain and Deputy Bereavement Services Manager for the United Lincolnshire Hospitals NHS Trust. In order to undertake this position, he required a licence from the Church, which was granted – he was also granted a ‘Permission to Officiate’ (PTO) which allowed him to undertake ministerial services such as giving sermons.

In July 2013 Mr Pemberton became engaged to his partner, and they planned their wedding for April 2014. He informed the Bishops of his area of his plans. They told him that they hoped he would follow the guidance recently produced by the House of Bishops, which confirmed that marriage was a union between a man and a woman. After he got married, the Bishop of Lincoln rebuked Mr Pemberton for choosing to marry, knowing that for an ordained priest to enter into a same-sex marriage was contrary to the teachings of the Church of England and the clear, recent statement of the House of Bishops.

Shortly after his marriage, Mr Pemberton applied for a position as a Chaplain and Bereavement Manager at the Sherwood Forest Hospitals NHS Trust. He was offered the position subject to certain pre-condition, which included obtaining the relevant licence from Mr Inwood, who was the Acting Bishop of Southwell and Nottingham, the diocese in which the NHS Trust was located.

Prior to the offer being made, Mr Inwood had exercised his discretion to revoke Mr Pemberton’s PTO, due to Mr Pemberton’s non-compliance with the doctrines of the Church, which was in breach of his duty of Canonical obedience. Mr Inwood was then requested by the NHS Trust to issue Mr Pemberton with a licence in order for him to take up his job offer. After reviewing a copy of the job description, Mr Inwood wrote to the NHS Trust stating that since Mr Pemberton had acted in a manner that contravened his Canonical vows, he had revoked Mr Pemberton’s PTO, and it would therefore be inconsistent to then issue him with a licence.

Mr Pemberton therefore brought an employment tribunal claim against Mr Inwood, alleging that he had been directly discriminated against because of his sexual orientation and/or his marital status. He brought his claim under the section of the Equality Act that applied to qualification bodies. Mr Inwood initially denied that he was a ‘qualification body’ for the purposes of the Equality Act, but if he was, he argued that the qualification was for the purposes of an organised religion, and therefore he was entitled to rely on an exemption allowed within the Equality Act.

Mr Pemberton’s claim failed in the employment tribunal; they found that Mr Inwood was a ‘qualification body’, but accepted that the role was ‘employment for the purposes of an organised religion’ and that Mr Inwood’s decision was completely justified in light of the fact that Mr Pemberon’s marriage was clearly incompatible with the clear guidance from the Church.

Mr Pemberton then appealed to the Employment Appeal Tribunal. He argued that the employment tribunal had made an error in the way they applied the exemption to the Equality Act. He argued that his employment was not for the purposes of ‘organised religion’ such that the exemption should not apply, because his employer was not an ‘organised religion’ and the purpose of the role was part of the holistic provision of health care that was employment by the NHS Trust for its own purpose. He also argued that there was no requirement that he not enter into a same-sex marriage, and that it was for individual bishop’s to determine whether doing so meant that it was not appropriate to issue a licence. This discretion suggested that it was not an occupational requirement that a licence holder not be in a same-sex marriage.

These arguments, and others, were rejected; it was accepted that the NHS Trust required its chaplain’s to have a licence for the purpose of carrying out the ministry of the Church of England; that was the purpose of the qualification and the employment. It was also accepted that even though a different Bishop might not have made the same decision, Mr Inwood had applied the Doctrines of the Church in making his decision, and therefore he was entitled to the protection of the exemption in the Equality Act.

This case is an interesting analysis of the juxtaposition between religious rulings and their practical application by their followers. It relied upon a very narrow, but important, exemption in the Equality Act, which raised new legal questions. As a result, permission has been granted for Mr Pemberton to take his case to the Court of Appeal. It remains to be seen what view they will take.

Safia Tharoo. Barrister. 42 Bedford Row, London

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