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Posted 24 January 2017
by Stephen Jennings

Refusal to Grant Licence to Priest Following Same Sex Marriage Not Discriminatory

candles in chapel where priest felt his employment rights were denied.

The Employment Appeal Tribunal (EAT) has recently upheld an employment tribunal’s (ET) decision that it was not direct sexual orientation or marriage discrimination for a Bishop to refuse to grant the required qualification for a Priest to take up a position as a hospital chaplain on the grounds that he had entered into a same sex marriage. In Reverend Canon Pemberton v Former Acting Bishop of Southwell and Nottingham, the EAT held that the religious occupational requirement exception in the Equality Act 2010 (EqA) applied in this case.

The Facts

Canon Pemberton was an ordained Church of England priest who had entered into a same sex marriage. He applied for a position as a hospital chaplain, and was offered the post subject to being granted the necessary licence from the Acting Bishop of Southwell and Nottingham (the Bishop). The Bishop refused to grant the licence to Canon Pemberton on the grounds that he had entered into a same sex marriage which was inconsistent with the Church’s teaching. Canon Pemberton issued proceedings in the Employment Tribunal (ET) to exercise his employment rights.

The Law

Sexual orientation and marriage/civil partnership are protected characteristics under the EqA and it is unlawful to discriminate on these grounds. However the EqA sets out occupational requirement exceptions on which an employer or qualification body can rely in order to avoid liability for discriminatory acts. One such exception is where the employment is “for the purposes of an organised religion” and includes a requirement that the applicant must not be married to a person of the same sex. In order to rely on the occupational requirement exceptions, the employer or qualifying body needs to be able to show that it is applying the requirement in order to comply with the doctrines of religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

The ET Decision

The ET held that the Bishop’s refusal to grant the licence was potentially discriminatory; however the religious occupational requirement exception applied because the employment was “for the purposes of organised religion”. The ET was a satisfied that same sex marriage was inconsistent with the doctrine of the Church of England. Canon Pemberton appealed to the Employment Appeal Tribunal (EAT).

The EAT Decision

The EAT dismissed the appeal and upheld the ET decision that there had been no unlawful discrimination under the EqA because the religious occupational requirement exception applied. On appeal, Canon Pemberton argued that the position of a hospital chaplain was such that he would be employed by an NHS Trust, not a religious organisation, and therefore the exception would not apply. The EAT rejected this argument, stating that “it is not the nature of the organisation that is in issue but the purpose of the employment…” It is worth noting that the EAT has granted permission to appeal to the Court of Appeal so the issue may yet be considered further.

For any advice, contact our specialist employment team on 01392 207020 or e-mail employment@tozers.co.uk.

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About the author

Stephen Jennings

Partner

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients