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SAME SEX MARRIAGE DISCRIMINATION LAWFUL UNDER SCHEDULE 9 EXEMPTION – MATTHEW SHERIDAN ACTS IN PEMBERTON CASE

On 28 October 2015 the Birmingham Employment Tribunal gave its judgment in the case of The Reverend Canon J C Pemberton v The Right Reverend Richard Inwood, Acting Bishop of Southwell and Nottingham. The case raises important issues about the application of the occupational requirements exemption contained in Schedule 9 of the Equality Act 2010, as well as about the rights of religious organisations to determine who may or may not represent them under Article 9 ECHR.

Canon Pemberton is a Church of England priest. On 12 April 2014 he entered into a same sex marriage under the Marriage (Same Sex Couples) Act 2013. Subsequently he applied to an NHS Hospital Trust for employment as a hospital chaplain. One of the requirements of the post was that the successful candidate should be authorised to act as a priest by the Church of England. The appropriate form of authority in the case of a Church of England priest is that he or she must hold a particular type of ‘licence’. The decision whether to grant Canon Pemberton a licence lay with the Bishop of Southwell and Nottingham, in whose diocese the hospital in question was situated.

On being requested by the employer hospital to grant a licence to Canon Pemberton the Bishop refused. The reason for his refusal was the fact that Canon Pemberton had entered into a same sex marriage, same sex marriage being contrary to the doctrines of the Church of England and priests being under a duty to uphold such doctrines.

Canon Pemberton brought claims for sexual orientation discrimination and harassment against the Bishop on the jurisdictional basis that, in refusing to grant the licence, the Bishop was acting as a ‘qualifications body’ under section 53 of the Equality Act 2010. The Bishop denied that he was a ‘qualifications body’ but contended that, even if he was, his actions were lawful because the case fell within the exemption contained within Schedule 9 of the Equality Act 2010, which permits qualifications bodies to apply a requirement not to be in a same sex marriage if the requirement is applied ‘so as to comply with the doctrines of the religion’ and if the employment in question is ‘for the purposes of an organised religion’.

The Tribunal held that the Bishop was acting as a ‘qualifications body’ in respect of the refusal to grant the licence. However, the Tribunal also held that the Schedule 9 exemption was engaged. Canon Pemberton has stated that he intends to appeal to the Employment Appeal Tribunal.

Matthew Sheridan appeared for the Bishop (led by Thomas Linden QC and instructed by Herbert Smith Freehills).

The case has attracted considerable media interest. Please click on the following links for a selection of the press articles on the case:

http://www.theguardian.com/world/2015/nov/04/gay-hospital-chaplain-loses-discrimination-case-cofe

http://www.telegraph.co.uk/news/religion/11976135/Hospital-chaplain-loses-gay-marriage-tribunal-against-Church-of-England.html

Posted: 16.11.2015 at 10:18
Tags:  Cases  Employment Law
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