This guest post by Peter Ould explains what is at stake in the Jeremy Pemberton Employment Tribunal Case.
What is happening?
The Revd Jeremy Pemberton is taking the Archbishop of York and Bishop Richard Inwood (who was the acting Bishop of Southwell and Nottingham) to an Employment Tribunal over the refusal of Bishop Richard to grant Mr Pemberton a licence. Jeremy Pemberton was offered a job with the Sherwood Forest Hospitals NHS Foundation Trust as a Chaplaincy Manager, but the NHS terms of employment required the appointee to hold a formal denomination’s recommendation.
Why was Jeremy Pemberton refused a licence?
In April 2014, Jeremy Pemberton became the first Church of England priest to enter a same-sex marriage (the only other known priest to do so is Andrew Foreshaw-Cain of West Hampstead, London). On the grounds that entering into a same-sex marriage was against Church of England doctrine, the Acting Bishop of Southwell withdrew his PTO (Permission to Officiate). When a licence was requested for Jeremy Pemberton for the Sherwood Forest position, that licence was refused. [Note: Permission to Officiate has no legal standing, and is in the gift of the diocesan bishop. It can be removed without any particular process. A licence is much closer to the status of employment. It indicates that clergy are in good standing; once given, it cannot be removed without due process, though there is no necessary process needed to refuse a licence.] It is claimed that Bishop Richard made this decision in conjunction with John Sentamu, the Archbishop of York (given that the Diocese of Southwell and Nottingham was in vacancy and the matter was of some importance).
On what grounds is Jeremy Pemberton taking this matter to an Employment Tribunal?
The Equality Act 2010 makes marital status a protected characteristic. Jeremy Pemberton claims that since the licence was refused on the grounds of his marital status, the Church of England acted unlawfully in refusing to grant it. He makes this claim against Bishop Richard Inwood and Archbishop John Sentamu.
Does he have a case?
That’s debatable for the following reasons.
First, it is unclear that it is the Bishops’ fault that Jeremy Pemberton did not get the job. The law of England and Wales does not require the NHS to demand that its chaplains hold accreditation from a recognised denomination, so the decision to require a licence is the choice of the NHS Trust, not the Church of England. In this sense it is arguable that Pemberton is taking the wrong institution to tribunal.
On the other hand, Pemberton claims that there is a level of inconsistency between his treatment in Southwell Diocese (removal of PTO and refusal to grant a licence) and that in Lincoln Diocese where Pemberton is currently working as a hospital chaplain. In that Diocese Pemberton was given an admonition by his Bishop but his accreditation was not removed. Pemberton may very well claim that for the Church of England’s decision to have any credibility, it must be implemented consistently. Of course, in practice each Diocese is structurally legally independent of every other diocese, so it will be interesting to see how this argument pans out.
Third, there is an exemption in the Equality Act which allows a religious organisation to discriminate on the grounds of marriage if such a discrimination is due to the doctrines of the religion (or would offend a large proportion of the membership of the religion). On that basis it looks as though the Bishops are home and dry before the hearing begins. There is, however, a subtlety in the law in that the exemption can either be on the requirement to be married or related to sexual orientation. Clearly Church of England clergy *can* be married, just not to someone of the same-sex. Does the law read to allow this? If not, can the exemption be made on a matter related to sexual orientation? If so, does that mean that the Church of England agrees with the Asher Cake ruling that same-sex marriage is a “gay” institution?
What are the implications for the Church of England?
If the Tribunal rules in favour of the Bishops then it will establish clearly that the practice of dealing with clergy in a same-sex marriage with a formal admonition and then a refusal to provide a licence for any future position is valid. It will shore up the doctrine of marriage in the Church (at least in the short-term) though it might also lead to questions in General Synod on the issue and pressure for a debate. The Business Committee is avoiding any such formal debate till after the Shared Conversation process is over, but events might overtake them.
If the Tribunal rules in favour of Pemberton, then it means that the Church of England no longer has control over the reasons why clergy may or not minister with their Bishop’s authority. We would have a situation where the Monarch’s court declares illegal the enforcement within the Church of doctrines that the Monarch herself has sworn to uphold. It’s difficult to see how such a contradiction can be sustained in the long term.
When will we know the final outcome?
Although the Tribunal hearing is this week, the outcome will probably not be published for at least a month if not longer. When it is finally released, beware of headline summaries and instead try to read the full text as it’s very likely there will be some subtleties in the ruling.
Will the ruling be appealed?
Whichever side loses, because of the issues at stake it’s likely that the case will go to a higher court.
What can I do?
Pray for all those involved. Whichever side you take, this is an exhausting and emotional experience for all. For Jeremy Pemberton and his husband Laurence Cunnington this is a case about their personal lives and choices which will be judged by strangers. For Bishop Inwood this is a complication that he was probably hoping to avoid in retirement. For Archbishop Sentamu and other senior church leaders (it is very likely that the national Church is advising on the legal defence as it will affect every diocese in the land) this is a key moment in the living out corporately of their policy on this issue.
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