The Court of Appeal has recently confirmed in the case of Pemberton v Inwood that there was no direct discrimination on the grounds of sexual orientation or marriage, or sexual orientation harassment, where a Bishop refused to grant a licence to a priest (“P”) which was necessary for him to take up a position as a hospital chaplain. The Bishop was able to rely on the occupational requirement exception within the Equality Act 2010 which allows a person or organisation to discriminate lawfully on limited grounds where religion or belief is an occupational requirement.
P, an ordained priest of the Church of England, married his same-sex partner in 2014 shortly after same-sex marriage was legalised in England and Wales. As a result of this, the Bishop revoked P’s Permission to Officiate (“PTO”) and declined to grant him an Extra Parochial Ministry Licence (“EPML”) which was a requirement for the hospital chaplain role P had applied for. P was not appointed as the hospital chaplain and subsequently brought claims for discrimination and harassment against the Bishop.
P’s claims for discrimination were brought on the grounds that he had been treated unfavourably because of his sexual orientation and marriage to his same-sex partner as the Bishop’s decision not to grant P an EPML was based on these characteristics. Sexual orientation and marriage are both protected characteristics under the Equality Act 2010 and therefore any unfavourable treatment because of them is unlawful unless an exception applies.
The Bishop contended that the requirement of not being in a same-sex was for the purpose of an organised religion and consequently the religious occupational requirement defence applied. He therefore argued that his actions were not unlawful.
Agreeing with the Employment Tribunal and Employment Appeal Tribunal, the Court of Appeal agreed that the occupational requirement exception applied in this case. This meant that the Bishop could lawfully discriminate against P because his sexual orientation and marriage to his same-sex partner did not meet the “doctrines of religion”. P was no longer considered to be of “good standing” (which is necessary for an EPML) as his marriage to his same-sex partner was in contravention of the Canon law of the Church of England and the Pastoral Guidance from the House of Bishops. Therefore the Bishop had the right to withhold the grant of the EPML.
P had sought to argue that the Church had no formal doctrine against same sex marriage. The Court of Appeal found that “doctrines” was wide enough to mean the teachings and belief of the organisation, and therefore could be wider than a strict interpretation of the word “doctrine” might suggest. In any event, the Court of Appeal found that the teachings of the Church of England relating to same-sex marriage were clear, and therefore there did not need to be an express provision prohibiting a priest from entering into a same-sex marriage.
P’s claim for harassment was also dismissed. On a technical reading of the Equality Act 2010, the occupational requirement exception does not apply to harassment. However, the Court of Appeal concluded that it would be an “affront to justice” to allow a claim for harassment to succeed where the potentially discriminatory act concerned was exempt under the Equality Act 2010. Therefore, unless there were aggravating factors, it would seem that claims for harassment for acts of discrimination that would otherwise be protected by the occupational requirement exception will not be able to be successfully brought.
The Court of Appeal has helpfully clarified the law in this area. They have also made clear that the occupational requirement defense can apply where organised religion is the focus of the employment, as opposed to the focus of the employer.
Employers in a religious setting will always need to consider carefully whether their actions fall foul of the Equality Act 2010, but the clarification from the Court of Appeal will be a comfort that the religious occupation requirement may assist in defending claims of discrimination based on sex, gender reassignment, marriage and civil partnership, and sexual orientation.