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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

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