As all readers of this blog will know, in April 2014, following the enactment of the Marriage (Same Sex Couples) Act 2013, Canon Jeremy Pemberton married his partner Laurence Cunnington. As a result, the Rt Revd Richard Inwood, at the time Acting Bishop of Southwell and Nottingham, revoked his Permission to Officiate (PTO) within the Diocese and declined to grant him an Extra Parochial Ministry Licence (EPML), which was a necessary requirement so that he could take up the post of Chaplaincy and Bereavement Manager at the Kingsmill Hospital run by the Sherwood Hospitals NHS Trust. As a result, he was not appointed to the post.

Canon Pemberton took the matter to an Employment Tribunal, where he was unsuccessful both at the original tribunal and on appeal to an EAT. He then took his case to the Court of Appeal. On Thursday, in Pemberton v Inwood [2018] EWCA Civ 564, the Court of Appeal dismissed his claim.

The Court concluded as follows [per Asplin LJ]:

• That there was no error of law in the reasoning of HHJ Eady QC: “although the EPML was a condition of employment with the NHS Trust, it is clear from the job description that although there were some duties which were of a general nature, the NHS Trust intended to employ a properly accredited minister of religion to carry out all aspects of the post, including conducting Church of England services if required. It required a clergyman properly licensed and approved by his bishop to carry them out … Inevitably, the principal purpose of the NHS Trust was to provide medical services. However, in the circumstances, that does not prevent the EPML being for the purposes of employment with the NHS Trust for the purposes of organised religion … it was intended to employ the Canon specifically because of his status as a minister of religion and in part to conduct religious services … In this case, the employment itself was in part, ‘for the purposes of an organised religion’ “. [61]
• That Her Honour “was correct to conclude that ‘doctrines’ for the purposes of paragraph 2(5) of Schedule 9 must be read more widely than what is considered strictly by a particular church or religious organisation to be ‘doctrine’ by that organisation … paragraph 2(5) uses the term ‘doctrines’ and not ‘doctrine’ and is intended to apply in relation to all religions. It seems to me that if one reads the sub-paragraph as a whole, in the context of the exception in paragraph 2 as a whole, it should be construed to mean the teachings and beliefs of the particular religious organisation which may be wider than what it itself labels ‘doctrine.’ Even if that were not the case, in this case, Canon A5 itself refers to the ‘doctrine of the Church of England’ in wide terms and states merely that such doctrine is to be found ‘in particular’ in the specific documents referred to. Accordingly … Her Honour Judge Eady QC was correct to conclude that the ET was entitled to find that the doctrines, as in teachings and beliefs of the Church of England, were as stated in Canon B30 with specific regard in relation to same sex marriages to the statement of Pastoral Guidance from the House of Bishops…” [62]
• “It was not necessary… that there should be an express provision prohibiting a priest from entering into a same sex marriage and spelling out the consequences if he did. The teaching and in fact, the doctrine of the Church of England (in the sense in which the Church uses the term) is quite clearly spelt out in Canon B30. Paragraph 1 of that Canon makes clear that the Church of England considers marriage to be between one man and one woman. By its very terms it delimits the concept of marriage in accordance with the teachings and doctrine of the Church in a way which excludes same sex marriage. Furthermore, it is made clear in paragraph 3 that a priest is expected to uphold what is described expressly as ‘the Church’s doctrine of marriage’…” [63]
• “Although the Marriage (Same Sex Couples) Act 2013 has extended the meaning of marriage, the position of the Church of England is carefully preserved in sections 1(3), (4) and 11.” [64]
• Her Honour “did not err in law in deciding at [113] of the EAT Determination that the ET was entitled to find that the requirement had been applied so as to comply(emphasis added) with the doctrines as found”… [66]

As to the claim of harassment:

“the ET found that there had been lengthy discussions with the Bishop and others in relation to the Canon’s intention to marry his same sex partner and their opposing positions were clear. Therefore, the consequences in relation to his standing cannot have been much of a surprise, despite the different approach adopted by the Bishop of Lincoln. In the circumstances, therefore, whether as a result of the statutory defence in relation to the same facts which amount to the unwanted conduct, or on the facts of this case, I agree … that it was not reasonable for the Canon to have reacted as the ET found that he did. Accordingly, I can find no error in Her Honour Judge Eady QC’s conclusion at [124] of her judgment and I would dismiss the appeal on this ground also.” [74]

Concurring, Underhill LJ said this on the harassment point:

“… it seems to me plain that the ET was entitled to find that the withdrawal of the PTO and the withholding of the EPML did not amount to harassment. I have no difficulty understanding how profoundly upsetting Canon Pemberton must find the Church of England’s official stance on same-sex marriage and its impact on him. But it does not follow that it was reasonable for him to regard his dignity as violated, or an ‘intimidating, hostile, degrading, humiliating or offensive’ environment as having been created for him, by the Church applying its own sincerely-held beliefs in his case, in a way expressly permitted by Schedule 9 of the Act. If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive. It would be different if the Bishop had acted in some way which impacted on Canon Pemberton’s dignity, or created an adverse environment for him, beyond what was involved in communicating his decisions; but that was found by the ET not to be the case” [89: emphasis added].