Gay priest barred from working after marriage faces new Court of Appeal ruling

5 Feb 2018 By Marianne Calnan

Employers should treat all married employees equally as ‘best practice’, says expert

The Court of Appeal has heard the latest sex discrimination appeal against the Church of England by a male priest barred from officiating after marrying his same-sex partner, in a case that may have wider repercussions for how employers handle matters of sexuality in the workplace.

The Church of England revoked its permission to officiate from Canon Jeremy Pemberton, a Church of England priest for more than 30 years, after he married his partner in April 2014. The denial of his licence in the diocese of Southwell and Nottingham left him unable to take up a job offer at the King’s Mill Hospital in Nottinghamshire. 

The Court of Appeal’s judgment, expected within two weeks, will be the latest in a line of discrimination cases related to homosexuality where there is a potential conflict between laws preventing discrimination against employees on the grounds of their personal beliefs and discrimination in the provision of services.

Pemberton, who was the first Church of England priest to enter into a same-sex marriage, claimed discrimination at Nottingham Employment Tribunal against the former acting Bishop of Southwell and Nottingham, the Right Reverend Richard Inwood. After the hearing in June, August and September of 2015, the tribunal found in October 2015 that the Church of England’s marriage doctrine excluded the possibility of same-sex marriage.

Employment Judge Britton found that the “constitutional convention meant that the state cannot impose same-sex marriage upon the church”, and it was a matter of religious doctrine that clergy are not allowed to enter same-sex marriages. 

Because of these “religious exemptions” to the Equality Act 2010, he ruled that Pemberton’s treatment by his former employer was lawful – not direct discrimination. 

Pemberton appealed to the Employment Appeal Tribunal on 7 December 2016 on the grounds that the Church of England's stance on same-sex marriage breached equality laws. 

Judge Eady QC, however, upheld the tribunal’s decision and dismissed Pemberton’s claim, finding that there was no “homophobic harassment”.

Following the ruling, a diocese of Southwell and Nottingham spokesperson said “the Church of England supports gay men and women who serve as clergy in its parishes, dioceses and institutions. It has no truck with homophobia and supports clergy who are in civil partnerships, as set out in the House of Bishops guidelines in 2006.” It said it was opposed, however, to same-sex marriage.

Pemberton took his case up to the Court of Appeal, and proceedings began on 31 January 2018. At the hearing before Lady Justice Gloster, Lord Justice Underhill and Lady Justice Asplin, Pemberton’s lawyer, Sean Jones QC, is understood to have told the court that Inwood’s decision was wrong because the Church of England does not have a fixed rule on same-sex marriage among members of the clergy. He also said clergy members in civil partnerships were allowed to officiate and that those were “effectively indistinguishable” from same-sex marriage.

Denise Keating, chief executive of the Employers Network for Equality & Inclusion (ENEI), said she believed the case’s outcome would hinge on whether the Court of Appeal agrees that the church is entitled to a religious exemption based on its own definition of marriage.

She outlined that, from the ENEI’s standpoint, “any employer, even one that can claim a legitimate aim because of religion and belief, cannot lawfully hold a position that distinguishes between civil partnerships and same-sex marriages.

“HR professionals should certainly be aware of the case, but should remember that best practice and the established legal position would be to treat all marriages, same-sex and heterosexual, as equal to civil partnerships.”

Keating emphasised the Church of England’s unique position as an employer, in that it issues licences for clergy members to practice, avoiding direct employment.

In another case involving attitudes to sexuality in the workplace, magistrate Susan Preston refused to hear a family case involving same-sex couple parenting in January 2017 because of her personal views against gay parenting. She was issued with a formal written warning for misconduct and ordered to stand down from the family panel. 

Meanwhile, a Relate counsellor who was dismissed after he said he would object to giving guidance to same-sex couples was found by the European Court of Human Rights not to have been unfairly dismissed. 

And in 2015, Belfast County Court found that Ashers Bakery had unlawfully discriminated against customers on the grounds of sexual orientation after its owners refused to make a cake for a function marking International Day Against Homophobia. 

The Christian owners of the bakery lost their appeal against the ruling after Court of Appeal judges ruled that they could not legally only service those who favoured their own religious beliefs.

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