Is Discrimination In Respect Of Same-Sex Marriage Ever Permissible?

In Reverend Canon Pemberton v. Former Acting Bishop of Southwell and Nottingham, Canon Pemberton, a Church of England priest, entered into a same-sex marriage.

The Church of England opposed the Marriage (Same Sex Couples) Act 2013 and held that same-sex marriage would not be possible according to the rites of the Church and was contrary to its doctrines. It had issued guidance to this effect. Prior to marrying, Canon Pemberton had been warned by the Bishop of Lincoln that proceeding with his marriage may leave him vulnerable to complaint.

Approximately two months after his marriage, Canon Pemberton applied for a salaried chaplaincy position at Sherwood Forest Hospitals Trust. One of the conditions of his job offer was that he obtained an Extra Parochial Ministry Licence from the Bishop of Southwell and Nottingham (the Bishop). The Bishop refused to grant the licence and revoked Canon Pemberton's Permission to Officiate with immediate effect, on the grounds that Canon Pemberton was in breach of his duty of canonical obedience as he was in a same-sex marriage.

Canon Pemberton subsequently brought claims of direct discrimination on the grounds of sexual orientation and/or marriage and harassment related to sexual orientation.

Decision

The Employment Tribunal found that the Licence was a "relevant qualification" within the meaning of, and that the Bishop was a "qualifications body" under, sections 53 and 54 of the Equality Act 2010, as the Bishop had the power to refuse to grant the qualification. This meant that the Bishop's actions were potentially discriminatory. However, the Tribunal held that the religious occupational exception under Schedule 9 of the Equality Act applied. This applies where the employment in question is for the purposes of an organised religion and there is a requirement on employees to comply with the doctrines of that religion. So, because the purpose of the employment (even though it was with the hospital trust, not the Church of England directly) was religious, and his same-sex marriage was in contradiction to the...