Pemberton v Inwood: licensing of C of E clergy and same sex marriage – a case-note

The Employment Tribunal has found for the respondent in Pemberton v Inwood, Acting Bishop of Southwell and Nottingham [2015] ET 2600962/2014

Background

Canon Jeremy Pemberton married Laurence Cunnington on 12 April 2014. Following subsequent correspondence and a meeting with the respondent, at that time Acting Bishop of Southwell and Nottingham, (“the Bishop”), in June 2014 the respondent revoked Canon Pemberton’s Permission to Officiate in the diocese (PTO). Sherwood Forest Hospitals NHS Trust had offered Pemberton the post of Chaplaincy and Bereavement Manager; but in order to take it up he required a licence/authorisation (EPML) under the Extra-Parochial Ministry Measure 1967 (EPMM) from the Bishop – who refused to grant it [1]. He did so because he regarded Canon Pemberton’s marriage as contrary to the teachings and law of the Church of England [2]. Sherwood Forest Hospitals NHS Trust then withdrew its offer.

The claim

It was evidently common ground between the parties that Canon Pemberton was not employed by the Church and that he could not, therefore, bring a claim under s 39 (Employees and applicants) of the Equality Act 2010 [3]: instead, he brought a claim under s 53 (Qualifications bodies) [4]. He also brought a claim of harassment under s 53 in relation to what had happened [10].

The Bishop contended that he was not a “qualifications body” for the purposes of s 53 [5]; but that if the Employment Tribunal were to find to the contrary, because the qualification in question was “for the purposes of employment for the purposes of organised religion”, it attracted the saving under Schedule 9 para 2 (Religious requirements relating to sex, marriage etc., sexual orientation) [6].

The issues

The agreed list of issues was as follows:

  • Whether the Bishop was at the material time a “qualifications body” to which s 53 of the Act applied and/or acting as such in respect of the PTO or the licence/authorisation.
  • Whether PTO or the licence/authorisation, or either of them, were “relevant qualifications” within the meaning of s 54(2) [14].

It was not in dispute that the licence in question was a licence granted under the EPMM 1967 rather than a  PTO [30]; equally, it was not in dispute that

“as opposed to a PTO, a [licence granted under the EPMM] cannot be revoked unless the chaplaincy comes to an end or the relevant chaplain becomes incapable of undertaking the role or he is taken down the disciplinary route under the Church Disciplinary Measure [sic] (CDM). So it cannot, unlike a PTO, be revoked simply at the discretion of the incumbent bishop” [32].

The judgment

The ET found that, on the facts, a PTO was “voluntary and not for remuneration”; and because it was not a relevant qualification it could not, therefore, engage s 53 [43]. However, the question remained as to whether, for the purposes of s 54(3), a PTO was “an authorisation …which is needed for or facilitates engagement in” the Trust chaplaincy role [43]. On that point, the ET concluded as follows:

“45.1 … the obtaining of a PTO cannot have been a requirement in relation to the Claimant’s previous two chaplaincy appointments.

45.2 The PTO was revoked before the Trust applied to the Respondent for the authorisation.

45.3. The appointment to the chaplaincy position with the Trust … was not dependent on having a PTO; and we have heard no evidence that it did.

45.4. It is clear from the evidence of the Respondent that even if the Claimant had not a PTO to be revoked, he would have refused to grant the EPML licence for the Trust chaplaincy because of the non-compliance/doctrinal issue…”

That element of the claim was therefore dismissed [48].

As to whether or not the licence/authorisation under the Extra-Parochial Ministry Measure, was a relevant qualification, the Court referred to the recent decision in Ganga v Chelmsford Diocesan Board of Finance and the Bishop of Chelmsford in corporate capacity [2015] ET 3200933/2013/. This concerned the revocation of the Revd Mr Ganga’s licence because he was so heavily in debt that he was no longer regarded as a “fit and proper” person to exercise ministry; and an Employment Tribunal concluded in a judgment dated 15 January 2015 that the Bishop of Chelmsford was indeed a qualifications body [99].

The ET in Pemberton agreed that, constitutionally, it was the bishop of the diocese in which a priest worked or wished to work who, under Canon 8, was the person who inter alia licensed or refused to licence “and no other” [99].

The view of the ET was that canonical obedience was “a core part of the qualifying of a priest for ministry within the Church” and that on taking up a new chaplaincy appointment Canon Pemberton would have to undertake to “ ‘pay true and Canonical Obedience to the Lord Bishop…’: in this instance of Southwell and Nottingham” [120]:

“Self-evidently he is not going to be able to fulfil that obligation or has not done so, subject to the doctrinal argument which is only engaged at schedule 9, and therefore objectively he cannot be issued with his licence. Therefore, we find that this assessment that ‘not being of good standing’ is capable of objective assessment” [121].

But was the Respondent a “qualifying body”? The ET concluded that he was:

“… the licence was a relevant qualification and that therefore as the Respondent was a qualifying body, and as the revocation was on the grounds of the Claimant having entered into a same sex marriage, the failure to grant the EPML constitutes an act of direct discrimination pursuant to s 13 of the Equality Act. Accordingly the Claimant gets over the threshold of s 53. Therefore we move forward to consideration of the matter under Schedule 9” [125 – emphasis added].

In relation to Schedule 9, the ET concluded:

  • that the qualification (namely the granting of a licence under the EPMM) was a qualification for the purposes of employment for the purposes of an organised religion [147];
  • that the present doctrine of the Church was clear; “marriage for the purposes of the Church of England is ‘between one man and one woman’ ” [188];
  • that until there was a change in that doctrine the priesthood had to conform to it in its ministry and individual behaviour [209]; and
  • that having determined that there was, in fact, a doctrine and concluded that the Claimant’s position was incompatible with that doctrine, it logically followed that the Respondent’s action was implicitly proportionate [236].

As to the alleged harassment, the ET accepted that the Canon Pemberton was clearly distressed and felt humiliated and degraded by what had occurred; however, he

“would never have been in this position had he not defied the doctrine of the Church. In this case, context is all. We conclude in the context of matters, given that the Church via the Respondent acted lawfully pursuant to schedule 9 and is therefore not liable pursuant to s 53, that it would be an affront to justice if we were to nevertheless find that what occurred constituted harassment. In the context of events we conclude that it was not” [270].

The claim was dismissed.

Comment

Subsequent media reports have indicated that Canon Pemberton is to appeal. A number of other commentators have expressed their views on the case and the possible appeal, some of which are summarised here. However, this post is a note of the proceedings and consequently does not comment on the judgment or speculate on future action.

Cite this article as: Frank Cranmer, "Pemberton v Inwood: licensing of C of E clergy and same sex marriage – a case-note" in Law & Religion UK, 12 November 2015, https://lawandreligionuk.com/2015/11/12/pemberton-v-inwood-licensing-of-c-of-e-clergy-and-same-sex-marriage-a-case-note/

2 thoughts on “Pemberton v Inwood: licensing of C of E clergy and same sex marriage – a case-note

  1. Pingback: Clergy Same-Sex Marriage: An Appealing Case? | Fulcrum Anglican

  2. Pingback: Law and religion round-up – 20th March | Law & Religion UK

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