As readers of this blog will know, Canon Jeremy Pemberton married his long-term partner, Laurence Cunnington, and Bishop Inwood – who at the time was Acting Bishop of Southwell & Nottingham – revoked his Permission to Officiate (PTO) and refused to grant him an Extra Parochial Ministry Licence (EPML), which he needed to be able to take up a post as Chaplain in an NHS Trust in the Diocese of Southwell & Nottingham.
In Revd Canon Pemberton v Right Revd Richard Inwood (Sex Discrimination: Marital status)  UKEAT 0072/16/0712 the Employment Appeal Tribunal [HHJ Eady QC, sitting alone] dismissed both the appeal of Canon Pemberton against the ruling of the Employment Tribunal and the Church of England’s cross-appeal.
Canon Pemberton had brought a claim in an Employment Tribunal for unlawful direct discrimination because of sexual orientation and/or marital status and unlawful harassment related to sexual orientation, contrary to s 53 Equality Act 2010 – which applies to qualifications bodies as defined by s 54(2) of that Act. Bishop Inwood denied that he was a qualifications body for the purposes of s 54(2) but, in the alternative, contended that any relevant qualifications (defined by section 54(3)) were for employment for the purposes of an organised religion and therefore fell within the exemption allowed by schedule 9 paragraph 2 of the Equality Act 2010. He contended that he had applied the requirement that Canon Pemberton’s marriage was incompatible with the doctrine of the Church of England in relation to marriage (“the compliance principle”). The claim of harassment was further denied on its facts.
The ET found that Bishop Inwood’s refusal to grant Canon Pemberton an EPML did fall under s 53 Equality Act 2010 and was a “relevant qualification” within the meaning of s 54: that was not the case, however, in respect of the revocation of his PTO. The ET further held, however, that the EPML qualification was for the purposes of employment for the purposes of an organised religion and the compliance principle was engaged; therefore, Bishop Inwood was exempt from liability by reason of paragraph 2, schedule 9 Equality Act 2010. As for the harassment claim, Bishop Inwood’s conduct did not amount to harassment. Context was everything: Canon Pemberton would not have experienced that (admittedly, unwanted) conduct had he not defied the doctrine of the Church. Moreover, Bishop Inwood had acted lawfully pursuant to schedule 9; it would be an affront to justice if his conduct was found to constitute harassment.
The ET had correctly held that the EPML was a relevant qualification (and the Bishop therefore was a qualifications body) for the purposes of sections 53 and 54 of the 2010 Act; the cross-appeal against that finding was dismissed. Equally, however, the ET had been entitled to find that the PTO was not a relevant qualification: it would not have “facilitated” the grant of the EPML on the facts of this case; it was Canon Pemberton’s lack of “good standing” within the Church of England that underpinned the Bishop’s decision in respect of both.
The ET had further reached a permissible conclusion that the qualification was for the purposes of employment for the purposes of an organised religion, notwithstanding that the employer would have been the NHS Trust and not the Church. The Trust required its Chaplain to have an EPML in order to carry out the ministry of the Church of England; that was the purpose of the qualification and the employment. As for the doctrines of the Church, this referred to the teachings and beliefs of the religion and the ET had been entitled to find that these were as stated by Canon B30 (“marriage is … a union … of one man with one woman …“), evidenced, in particular, by the House of Bishops’ Pastoral Guidance on Same Sex Marriage. The Bishop had applied a requirement that Canon Pemberton should not be in a same-sex marriage in order to comply with the doctrines of the Church; it was not fatal to the ET’s conclusion in that regard that a different Bishop might not have done the same.
As for the harassment claim, the ET had permissibly found that the particular context of the case was highly significant and meant that it was not reasonable for Canon Pemberton’s conduct to have the effect required to meet the definition of harassment under s 26 Equality Act 2010. He had been aware that his marriage would mean that he would not be seen as in “good standing” within the Church of England. The Bishop’s decision was exempt from liability by reason of schedule 9 and there were no aggravating features arising from his decision or its communication.
HHJ Eady concluded as follows:
“Given the importance of the legal questions involved and the novel issues arising, in particular, in respect of schedule 9, I would consider this matter suitable for permission to be given to appeal to the Court of Appeal, should such an application be made” 
This note is based on the summary of the judgment. I hope to post a more detailed analysis next week.