Is discrimination in respect of same-sex marriage ever permissible?

Facts
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 occupational requirement that employees follow the doctrines of the Church of England, the exception applied.
The Employment Appeal Tribunal upheld this decision but it observed that the case was suitable for leave to be given to the Court of Appeal.
Comment
This decision demonstrates the interplay for employees of religious organisations between their rights under equality legislation and the doctrines of religion. The facts of this case are particularly difficult as the ultimate employer would have been a non-religious institution, namely, the hospital trust. It is important to note that the religious occupational exception will not be applicable to most employers.

Michelle Lamb

About Michelle Lamb

Michelle is a senior associate in the Employment team. She advises public and private employers on all aspects of contentious and non-contentious employment law, but specializes in TUPE, change programs, employment aspects of corporate transactions and discrimination complaints. Michelle regularly procures advice from other jurisdictions to support Dentons' multinational client base.

Full bio