When the claimant, an ordained Church of England priest, married his same sex partner he was rebuked by his local bishop for choosing to do so when he knew that it was contrary to the teaching of the Church of England for an ordained priest to enter into a same sex marriage. The claimant had also applied for the post of chaplain to an NHS trust, but his permission to officiate (“PTO”) was revoked and an extra-parochial ministry licence (“EPML”), possession of which was a condition for the post, was then refused by the respondent, the acting bishop of the relevant diocese, on the ground that by entering into his marriage the claimant had acted in a way inconsistent with both his ordination vows and the canonical duty to model the Church’s teaching in his life. The claimant brought proceedings against the respondent under the provision prohibiting discrimination by qualifications bodies in section 53 of the Equality Act 2010, complaining of direct discrimination, contrary to section 13(1), and unlawful harassment, contrary to section 26, because of sexual orientation and/or marital status. The respondent denied that he was a “qualifications body”, as defined in section 54(2); alternatively, he contended that, in making arrangements for deciding upon whom to confer a qualification, he had applied the requirement not to be married to a person of the same sex where the employment was for the purposes of an organised religion, and so came within the exemption permitted by paragraph 2(1) of Schedule 9 to the Act. An employment tribunal found that the appointment to a chaplaincy within the trust was not dependent on having a PTO, which was not, therefore, a relevant qualification; and that, while the EPML was a relevant qualification, employment with the trust was “for the purposes of an authorised religion” within the meaning of paragraph 2(1)(a) of Schedule 9, notwithstanding that the employer would have been the trust and not the Church, and, since the claimant’s position was incompatible with the doctrines of the Church and in breach of his duty of canonical obedience, the respondent had not acted unlawfully in refusing to grant the EPML. In relation to harassment, the tribunal found that the revocation of the PTO and the refusal to grant an EPML, though humiliating and degrading for the claimant, could not give rise to unlawful acts of harassment, given that they were protected by the statute from amounting to acts of discrimination. The tribunal accordingly dismissed the claims. The Employment Appeal Tribunal dismissed the appeal by the claimant and the cross-appeal by the respondent against the finding that he was a qualifications body in relation to the EPML.
On appeal by the claimant and cross-appeal by the respondent—
Held, appeal and cross-appeal dismissed. (1) The question of whether the respondent was a “qualifications body” for the purposes of section 53 of the Equality Act 2010 turned on whether the PTO and the EPML were “relevant qualifications” for the purposes of sections 54(2) and (3) of the 2010 Act. The Appeal Tribunal had been correct to hold that the PTO did not constitute such a qualification but that the EPML did (paras 40–42, 78, 92).
(2) The respondent had been entitled to rely upon the exception in paragraph 2 of Schedule 9 to the 2010 Act. First, the EPML was a “qualification ... for the purposes of employment ... for the purposes of an organised religion” within paragraph 2(3)(a) of Schedule 9. Although the EPML was a condition of employment with the NHS trust, it was clear from the job description that although there were some duties which were of a general nature, the NHS trust intended to employ a properly accredited minister of religion to carry out all aspects of the post, including conducting Church of England services if required. It required a clergyman properly licensed and approved by his bishop to carry them out. To put the matter another way, the focus or the purposes of the employment was that of organised religion. Secondly, the requirement not to contract a same sex marriage had been applied in order to comply with the “doctrines of the religion” under paragraphs 2(3)(b) and (5) Schedule 9. “Doctrines” within paragraph 2(5) had to be read more widely than what was considered strictly by a particular church or religious organisation to be “doctrine” by that organisation. Paragraph 2(5) used the term “doctrines” and not “doctrine” and was intended to apply in relation to all religions. If one read the sub-paragraph as a whole, in the context of the exception in paragraph 2 as a whole, it should be construed to mean the teachings and beliefs of the particular religious organisation which might be wider than what it itself labelled “doctrine”. Even if that were not the case, in the present case, Canon A5 itself referred to the “doctrine of the Church of England” in wide terms and stated merely that such doctrine was to be found “in particular” in the specific documents referred to. Accordingly, the employment tribunal had been entitled to find that the doctrines, as in teachings and beliefs of the Church of England, were as stated in Canon B30 with specific regard in relation to same sex marriages to the statement of Pastoral Guidance from the House of Bishops. The court could not be expected to enter into a theological debate in order to determine the doctrines itself. Indeed, the court ought not to do so. The employment tribunal had also been entitled to find that the doctrines in relation to marriage were clear and that the requirement had been applied so as to comply with the doctrines as found (paras 61–66, 80–82, 92).
(3) The Appeal Tribunal had not erred in law in deciding that the revocation of the PTO and the refusal to grant an EPML were not, without more, sufficient to amount to harassment under section 26 of the 2010 Act. In the context of this case, unless there were “aggravating features”, it could not be reasonable for unwanted conduct which otherwise fell within the defences in paragraph 2 of Schedule 9, to have had the effect proscribed in section 26(1)(b). To conclude otherwise would make a nonsense of providing the defence in Schedule 9 in the first place (paras 73–76, 85–89, 92).
Sean Jones QC, Justin Gau and Helen Trotter (instructed by Thomson Snell & Passmore llp, Tunbridge Wells) for the claimant.
Thomas Linden QC and Matthew Sheridan (instructed by Herbert Smith Freehills llp) for the respondent.