Another one I missed…
The Times reported (£) on 27 December that “A lawyer-turned-vicar is suing his church for discrimination after he was dismissed when his marriage ended.” The report relates to the dismissal of the Revd Jonathan Gould as minister of St John’s Downshire Hill, in Hampstead, and the subsequent proceedings before Employment Judge Lewzey and, in October, before Simler J in the Employment Appeal Tribunal: see Rev J Gould v Trustees of St John’s Downshire Hill  UKEAT 0115/17/0510.
St John’s Church, Downshire Hill, is one of the few surviving Church of England proprietary chapels. It is recognised as a church within the Diocese of London but has complete independence in financial matters. The church’s website explains that it is entirely self-supporting and all costs, including staff and building costs, are borne by the congregation. From the First World War, the congregation had leased the church building from the family trust which had owned it; in 2003, however, the congregation bought the church from the trust. The church receives no support from and makes no contribution to Diocesan funds.
The trustees of the church employed Mr Gould as a minister from 1 September 1995 until his summary dismissal on 1 August 2016 . He married in 1997. Difficulties in his marriage were raised with him by the trustees’ leadership team and in May 2015 it was proposed that he take a sabbatical from duties in order to attempt to restore his marriage . He did not wish to take the sabbatical but came under pressure to do so . His employment was terminated with immediate effect by letter dated 1 August and he was told that he would receive three months’ pay in lieu of notice. Simler J said that she had not been provided with a copy of that letter; but she understood that the reason for dismissal given in it was that the relationship of trust and confidence necessary for a continued employment relationship had broken down .
Mr Gould claimed that the real reason for his dismissal was the difficulties in his marriage. Had he not been married he would not have been dismissed and, therefore, he had been directly discriminated against on the ground of marriage, contrary to s.13 of the Equality Act 2010 read with s.39(2)(c) . The Employment Tribunal dismissed his claim.
Counsel for the Trustees argued that grounds relied on by Mr Gould as the reason for less favourable treatment were the fact of difficulties in his marriage and not the fact of marriage itself. He submitted that the fact of being married was a “but for” cause, whereas the difficulties in Mr Gould’s marriage were the proximate cause. He therefore contended that the scope of s.8 did not extend to marriage difficulties as a protected characteristic in themselves . Many married couples did not face marriage difficulties and many unmarried couples faced equivalent relationship difficulties. Therefore, “marriage difficulties are not a proxy for marriage” .
Simler J did not accept those arguments :
“… the difficulties in the Claimant’s marriage were, on his pleaded case, only significant to the Respondent because there was a marriage in which there could be difficulties. Paragraph 78 and other passages in his pleaded case make clear his contention that the decision to dismiss him depended on the fact that he was married and having marital difficulties, with the emphasis on ‘marital’ rather than ‘difficulties’. The reason marriage difficulties were problematic for the Respondent flowed from the importance attached to the institution of marriage by this church employer on his case” .
The decision-makers had a particular view of marriage and the behaviour that could be tolerated or not in a married person. The Employment Judge had been wrong to conclude that Mr Gould’s pleaded claim was that he was not dismissed because he was married: on the contrary, he was complaining that the discrimination flowed from the composite reason of his being married and having marital difficulties . On a reasonable reading of Mr Gould’s pleaded case, the facts gave rise to an arguable case that it was his married status and his marital difficulties that had led to his dismissal. That composite reason had been the reason for Trustees’ treatment of him and the case should have been permitted to proceed.
Simler J was satisfied that the Employment Judge had made an error of law in striking out his claim. The appeal was allowed and the decision striking out the claim on that ground set aside .
Mr Gould’s employment status was not at issue – presumably because St John’s is a proprietary chapel. Had he been an incumbent in a C of E parish, he would have been regarded as an office holder rather than an employee or worker for the purposes of employment rights: see Sharpe v The Bishop of Worcester  EWCA Civ 399.
I am not a professional lawyer, in the conventional sense of my being a solicitor or a barrister. However, I believe I may well have read much of the Sharpe judgment back in 2015, and I state now that I have read both the first instance and appeal judgments in Gould during the past few days.
For what my opinion is worth, I think that this case could turn out to be rather important to the wider protestant community, because the typical relationship of paid Nonconformist ministers of religion with the churches that are their livelihood, is more akin to the unusual relationship between this particular Anglican clergyman and his exceptional propriety chapel, than it is to the “office holder” relationship of a typical Anglican “incumbent”
with his bread-and-butter, workplace-church.
The case law to date, consisting of Gould and Sharpe establishes something of a double standard, as regards jurisdiction. Ordinarily, Anglican clergy with grievances *cannot* sue their churches as employees. Other disgruntled clergy will henceforth be able to sue their own churches as employees willy nilly, I fear.
I fear that this will inevitably lead to the British state’s so-called “courts of justice”, as-it-were, *micro-managing* the future religious decisions of organised religion. Decisions, that is, about whom the religious in today’s free society, remain willing to remunerate, for example by putting money into an offertory plate, to do its organising for them.
The British state’s courts and tribunals, now that such matters have been ruled justiciable, requiring that they must (so-to-speak) judicially review ecclesiastical the decisions, won’t likely evaluate each and every challenged decision by the church’s *own* standards, pleasingly constant though these have been for a couple of millennia, but by whatever the standards are of the secular governments of the day. In other words, Gould represents a watershed in the stormy relationship between church and state.
“The Employment Judge had been wrong to conclude that Mr Gould’s pleaded claim was that he was not dismissed because he was married: on the contrary, he was complaining that the discrimination flowed from the composite reason of his being married and having marital difficulties.”
I think the first-instance Employment Judge was right. I pray God that this folly of the appeal court is itself appealed successfully.
I fear that this new legal doctrine of the higher tribunal will enable wife-beaters to draw stipends for the rest of their careers, from tiny, poor churches funded by the sacrificial tithes and offerings of good Christians, on the grounds that sacking the wife-beaters xconcerned from the clergy, for their being, indisputably, wife-beaters, in whom the faithful had therefore lost confidence as their would-be spiritual leaders, would be impossible, if they didn’t hadn’t had wives to beat in the first place, having a wife being a protected characteristic under the Equality Act.
Rev Gould’s wife has walked out on him, not vice versa, and the trustees of his chapel expect *him* to solve that marital problem, not *her*, as (arguably) she could tomorrow, simply by going home to her husband? I suspect that the church was probably wrong to take sides in a marital dispute, as it did, so obviously. I could also criticise the husband for going to law against his church. I don’t know whose side I’m on, as regards the difficult marriage.
One thing that made me wince was the quotation from Hawkins v Atex Group Ltd & Ors UKEAT/0302/11/LA at :
“I will use the old and well-understood, albeit much deprecated, phrase ‘common-law spouse’ rather than the modern ‘partner’, which does not have so specific a meaning” [per Underhill J].
“Much deprecated” for the very good reason that there is no such status known to English law and – with all due respect – the sooner it goes out of use the better, because there are a lot of unmarried couples who think that it still exists.