Canon Jeremy Pemberton married his long-term partner, Laurence Cunnington in 2014. The Appendix to the Pastoral Guidance on Same Sex Marriage sets out the current position of the Church of England adopted by the House of Bishops as follows:
“27. The House is not … willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives.
28. The Church of England has a long tradition of tolerating conscientious dissent and of seeking to avoid drawing lines too firmly, not least when an issue is one where the people of God are seeking to discern the mind of Christ in a fast-changing context. Nevertheless at ordination clergy undertaken to ‘accept and minister the discipline of this Church, and respect authority duly exercised within it.‘ We urge all clergy to act consistently with that undertaking.” [Emphases in original]
As a result of Canon Pemberton’s marriage the Rt Rev Richard Inwood, the Acting Bishop of Southwell and Nottingham, revoked his Permission to Officiate (“PTO”) and refused to grant him the Extra Parochial Ministry Licence (“EPML”) which he needed to be able to take up a post as Chaplain and Bereavement Manager at the Sherwood Forest Hospitals NHS Trust (“the Trust”).
Canon Pemberton brought proceedings in an Employment Tribunal, complaining of unlawful direct discrimination because of sexual orientation and/or marital status and of unlawful harassment related to sexual orientation, his claims being brought under s 53 Equality Act 2010 – which applies to qualifications bodies, as defined by s 54(2). Bishop Inwood denied that he was a qualifications body but, in the alternative, contended that any relevant qualifications (defined by section 54(3)) were for the purposes of employment for the purposes of an organised religion and therefore fell within the exemption allowed by schedule 9 paragraph 2 of the Equality Act and that he had applied the requirement that Canon Pemberton should not be in a same-sex marriage because that was incompatible with the doctrine of the Church in relation to marriage. Further, he denied the harassment claim on its facts.
The Employment Tribunal determination
The ET found that the Bishop’s refusal to grant the 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 Canon Pemberton’s PTO. But the ET further held that the EPML qualification was for the purposes of employment for the purposes of an organised religion and that Bishop Inwood was therefore exempted by paragraph 2 of schedule 9 of the Act. It also held that the distress caused to Canon Pemberton did not amount to harassment. Canon Pemberton appealed; and Bishop Inwood cross-appealed against the finding that he was a “qualifications body” for the purposes of the Equality Act.
The ET had noted that it was an essential requirement of the person specification for the post that the post-holder be an “Anglican or Roman Catholic ordained priest, eligible to be licensed by the Bishop OR Free Church … eligible for authorisation by appropriate Church authority” . Moreover, because possession of an EPML before appointment as an NHS chaplain was an NHS-wide practice, granting it “facilitates engagement in a particular trade or profession” . The ET concluded that the Bishop’s decision that Canon Pemberton had acted contrary to the Church’s doctrine on marriage – and was therefore in conflict with his canonical duty of doctrinal obedience – had been reasonable and proportionate. 
As to the harassment claim, the ET had concluded that, though there had been unwanted conduct that had created an adverse environment for Canon Pemberton and was on the grounds of his sexual orientation, it was not reasonable for the conduct to have had the effect of violating his dignity given that he would never have been in that position had he not defied the doctrine of the Church. 
The appeal judgment
In Reverend Canon Pemberton v Reverend Richard Inwood (Sex Discrimination: Marital status)  UKEAT 0072/16/0712 HHJ Eady dismissed both the appeal and the cross-appeal, which fell to be considered under three headings :
- Qualifications bodies and the issue of “relevant qualification”.
- The application of paragraph 2 schedule 9 Equality Act 2010.
- The harassment claim.
The starting point for both the appeal and cross-appeal was whether the ET had been correct in determining that the Bishop was not a qualifications body in respect of the PTO (first ground of appeal) but was a qualifications body in respect of the EPML (first ground of cross-appeal). Both parties agreed that the Bishop would be a qualifications body for the purposes of section 53 if he could properly be said to have conferred a “relevant qualification” under section 54(3) .
On the first issue, HHJ Eady upheld the ET’s key finding that the PTO was revoked because of the Bishop’s view that Canon Pemberton was no longer in “good standing”:
“Had the PTO not been revoked that would have been because the Respondent had not reached that conclusion. And, had he not reached that conclusion then, equally, he would have had no reason not to grant the EPML. The arguments become circular because they skate around the real issue: the decisions were consistent because they reflected the Respondent’s view of the Claimant’s standing; they were not interdependent, one did not facilitate the other” .
As to the cross-appeal, in Her Honour’s opinion the role of hospital chaplain was “plainly a vocation or calling such as to meet the broad definition of ‘profession'”: consequently, to grant a qualification for the purpose of a particular position that facilitated engagement in that profession met the requirements of section 54(3) . Furthermore, the NHS Trust was content to leave to the Bishop the decision as to whether or not approval would be given by way of an EPML:
“The Respondent was asked to make a decision as to whether the Claimant was approved to carry out the ministry of the Church in an external role, employed by a third party. The Trust – as the employer – thus stood in the place of the wider public … the key point is that the body granting the qualification is not simply applying a standard for its own purposes but is signifying that the individual meets a particular standard in circumstances where others will rely on that authorisation such that it will provide or facilitate access to a particular profession” .
The application of paragraph 2 schedule 9 Equality Act 2010
Canon Pemberton had contended that the post in question was employment within the NHS, not within the Church: the Trust’s appointment of a chaplain was part of its overall health-care provision and the Church of England played no part in setting the job description for the role nor in the selection of candidates: “Why should the Church be permitted to create a discriminatory block to the appointment of the Claimant when the Trust had determined he was the best candidate for the role?” .
HHJ Eady’s answer was twofold: the exception permitted by paragraph 2 of schedule 9 was not limited to employment within a religious organisation: it was not the nature of the organisation that was in issue but the purpose of the employment:
“And here the ET’s finding is clear: authorisation to be able to minister as a Church of England Priest was an essential requirement of the employment..; it was an integral part of what the Trust intended for the role” .
“that was the purpose of the qualification the Claimant sought. The EPML was the necessary licence for him, as a Church of England Priest, to carry out the Church’s ministry throughout the Trust … The purpose of the EPML was thus for the purpose of employment for the purpose of an organised religion (here, the Church of England), albeit carried out whilst employed by a secular body” .
There had therefore been no error of law in the ET’s approach or conclusion.
The question then arose as to whether the ET had erred in concluding that the Bishop had applied a requirement that engaged the compliance principle for the purpose of paragraph 2(5) schedule 9. The ET had been entitled to find that the doctrines of the Church of England were as stated by Canon B30 and, with specific regard to same-sex marriages, as evidenced by the Pilling Report [the Report of the House of Bishops’ Working Group on human sexuality] and the Pastoral Guidance. That being so, it was equally entitled to accept that those doctrines were clear: marriage for the purposes of the Church of England was ” between one man and one woman” . On that basis, the ET had been entitled to conclude that the requirement applied by the Bishop (that Canon Pemberton should not be in a same-sex marriage) was applied so as to comply with the doctrines thus identified . Furthermore:
“the fact that another Bishop might not have applied the same requirement does not take his decision outside sub-paragraphs 2(3) and (5). The exception allowed by paragraph 2 recognises that there may not be one consistent view within any religious community … It was not for the ET to prefer the reaction of one Bishop rather than another in terms of determining what might be required for compliance with the doctrines of the religion. It was concerned only with whether that was the reason for the Respondent’s particular application of the requirement; a question of fact rather than a value judgment for the ET” .
HHJ Eady felt that the ET could have chosen its words more carefully:
“I understand the Claimant’s objection to the way in which the ET has expressed itself … It is unhelpful to characterise his conduct – manifesting his love and commitment for his long-term partner through marriage – as an act of defiance against the doctrines of the Church. That may have been the consequence (as I have concluded the ET was entitled to find) but the ET’s description can be read as suggesting that was the Claimant’s intention, which fails to do justice to his position. Similarly, I can see why the Claimant has objected to the ET’s explanation as to why it saw the application of schedule 9 to be relevant to the determination of the harassment claim. Certainly, the use of the expression ‘affront to justice’ seems unnecessarily hyperbolic” .
Nevertheless, there had been no error of law in the ET’s finding:
“This was not a case where the Respondent’s decision was unexpected: both parties understood each other’s positions; the Claimant was aware his marriage would be seen as in conflict with the teachings of the Church (even if he did not accept the characterisation of those teachings as doctrine) and he would thus be viewed as not in ‘good standing’, as would be understood within the Church of England. Moreover, although the Respondent’s decision would otherwise have amounted to an act of direct discrimination, Parliament had permitted a specific exemption from liability. If he were not permitted to make and communicate that decision without committing an act of unlawful harassment, that would create an inherent contradiction within the statute. That is not to say that the Respondent, acting as a qualifications body, could not commit an act of harassment in relation to the conferment of a relevant qualification but that would need something – some aggravating feature – more than simply the making and communication of a decision that fell within the schedule 9 exemption. Although poorly expressed, that is what I am satisfied the ET permissibly found. It adopted the correct approach, which allowed it to have regard to the context of the case” .
Was the Respondent’s conduct related to the Claimant’s sexual orientation?
Her Honour concluded by referring briefly to the Bishop’s cross-appeal on whether his conduct “related to” Canon Pemberton’s sexual orientation. She felt that the ET had been correct:
“‘related to’ is a broad term, it does not require a direct causal link. The ET was entitled to find that the Claimant’s status as someone who had entered into a same-sex marriage was inextricably related to his sexual orientation. Whilst directed at the Claimant’s marital status, the Respondent’s conduct thus related to the fact that he was a gay man. Had it been necessary, I would have dismissed the cross-appeal on this point” .
Having dismissed both the appeal and the cross-appeal, 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” .
Whether the matter will go any further remains to be seen.
Thanks for this clear summary. But would I be right in concluding that leaving this open to appeal does not suggest any doubt or question about the conclusion, but merely that it might be doubly helpful to have clear confirmation of the position by means of an appeal which would be expected to be rejected by the Court of Appeal?
I’m sure that that was the sense in which HHJ Eady intended it. But I wouldn’t dream of taking a punt on what will happen if it does go to the Court of Appeal: I’ve a lousy track-record for predicting appeal outcomes.
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This is interesting: The fact that NHS hospital chaplains must hold an EPML may be useful evidence with which to challenge the ridiculous claim that hospital chaplains (paid from NHS budget) can supply “spiritual” care to atheists like me. They most certainly do not provide a universal service to hospital patients.
No: but they might just, sometimes, provide non-spiritual care to atheists not like you. Maybe, sometimes, people who know they are dying just need someone to spend time with them: that does not necessarily have anything to do with “religion” or the lack of it.
So might a visitor to the person in the bed next to mine or an empathetic nurse, given that he or she had the time to spare. The fact that the chaplain is a professional priest makes it clear where she or he is coming from (and where they think I am going to).
This kind of support does not need a professional religious cleric and the hard pressed NHS does not need to fund such a service… just to facilitate it. Chaplains are there for the faithful and probably most importantly to deliver the rites required of religion. I have asked the CHCC for evidence of chaplaincy time spent with the non-religious. It is claimed but never substantiated. If organised religion was as selfless and universally sympathetic as you suggest it would set up a charitable trust to fund such support and allow the NHS to use its budget for clinically efficacious care.
The money involved is not insignificant £1.3 million p.a in Wales and over £20 million p.a in England. There were 1.7 million Christians in Wales according to the 2011 Census just the most affluent 25,000 giving £1 per week (with gift aid tax refund) would allow Christians to have an EPML qualified priest in their hour of need. No one I have raised this issue with has been able to provide a relevant argument to defend the position that the State and in particular the NHS has a responsibility to fund priests in hospitals.
As a footnote the Catholic Church in Scotland refuses to allow its priests to be employed by the NHS as chaplains. The Welsh Province has been unable to explain why this does not apply in Wales.
“So might a visitor to the person in the bed next to mine or an empathetic nurse, given that he or she had the time to spare.” Not, perhaps, at 4 am. But on this we are not likely to agree, so let’s leave it there.
OK… but one final shot… An atheist will not at 4am suddenly ask to see a priest. A lapsed Christian might. After a life where other matters seemed more pressing than attending church a remembrance of the vile doctrine of original sin imbibed in childhood might cause distress. In this case the organisation responsible for the distress should meet the cost of dealing with it… not the NHS.
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