It was announced yesterday that Jeremy Pemberton has lost all appeals at the Employment Appeal Tribunal (EAT) that he brought in relation to his Employment Tribunal (ET) case brought against Richard Inwood, Acting Bishop of Southwell and Nottingham. At one level there is not much to say on this, since the EAT has confirmed in the clearest terms the ruling of the ET. But there continue to be inaccuracies in reporting on this and its significance, so it is worth being clear what has been said.
Jeremy had entered a same-sex marriage, against the teaching position of the Church, and as a result he had received a formal rebuke from the Bishop of Lincoln, whose licence he had as a hospital chaplain, and had had his Permission to Officiate in Southwell and Nottingham, where he lived, revoked. (Neither of these requires any legal process.) He then applied for and was appointed to a post as a Chaplain in Southwell and Nottingham, but was not granted a new licence by the bishop here, and so could not take up the post, since the hospital trust required that he had a licence as a priest ‘in good standing’ in order to conduct Anglican worship in the chapel. Jeremy initiated the ET case, claiming discrimination under the Equality Act 2010 and harassment in light of the distress the process caused him.
The initial judgement ruled that the Church had a clear exemption under paragraph 2 of schedule 9 of the Equality Act, and the EAT ruling confirmed this in the clearest terms.
The ET had correctly held that the EPML [the licence] was a relevant qualification (and the Respondent thus a qualifications body) for the purposes of sections 53 and 54 EqA; the Respondent’s cross-appeal against this finding was dismissed. Equally, however, the ET had been entitled to find that the PTO was not a relevant qualification: it would not have “facilitated” the grant of the EPML on the facts of this case; it was the Claimant’s lack of “good standing” within the Church of England that underpinned the Respondent’s decision in respect of both.
It is heartening that both judgements are clear about the important difference between PTO and a licence, something that is consistently misreported. In fact, the initial ET judgement offered an impressive, careful and detailed reading of the Church’s own documents, and drew on them extensively.
On Jeremy’s second claim, that of harassment, the EAT also confirmed that the ET had ruled correctly.
As for the harassment claim, although the Claimant was caused distress by the Respondent’s conduct, which he found humiliating and degrading, this did not amount to harassment. Context was everything. The Claimant would not have experienced that (admittedly, unwanted) conduct if he had not defied the doctrine of the Church. Moreover, the Respondent had acted lawfully pursuant to schedule 9; it would be an affront to justice if his conduct was found to constitute harassment.
It had been noted in the ET that, at every stage, both the Bishop of Lincoln and the Acting Bishop of Southwell and Nottingham had made clear the significance of Jeremy’s action and what the consequences would be.
One question which hovered over the initial ET judgment was in relation to the doctrine of the Church in relation to marriage. I was startled when, under cross-examination, Richard Inwood had agreed that the doctrine of the Church ‘was a busted flush’. But both the ET and the EAT have ruled that, in the context of employment law, the Church’s doctrine of marriage is both clear and enforceable, and that clergy can reasonably be expected to conform to it.
As for the doctrines of the Church, this referred to the teachings and beliefs of the religion and the ET had been entitled to find these were as stated by Canon B30 (“marriage is … a union … of one man with one woman …”), evidenced, in particular, by the House of Bishops’ Pastoral Guidance on Same Sex Marriage. The Respondent had applied a requirement that the Claimant not be in a same sex marriage so as to comply with the doctrines of the Church; it was not fatal to the ET’s conclusion in that regard that a different Bishop might not have done the same.
That final comment seems to me to be highly significant. Even if the Church’s doctrine has been applied inconsistently in the past, and elsewhere in the Church, then that does not undermine the action of a bishop who acts on it. In other words, if the collegial support for this doctrine in the House of Bishops collapses, and some bishops decide to declare UDI and ignore the doctrine, then other bishops are still secure in law in enacting discipline based on this doctrine.
(Someone has suggested to me that this might appear to undermine collegiality, and open the door for such dissenting behaviour. But it is worth noting that questions of discipline within the Church are dealt with Church processes, and in particular the Clergy Discipline Measure, and not the context of employment law which is in view here.)
In risk analysis terms for the Church, the appeal (along with the initial complaint) were never likely to be granted, so that rated as a 1 in terms of likelihood. But the consequences would have been in the ‘catastrophic’ category at a big old 5, which is why the case has continued to be of wider interest. As Andrew Goddard previously noted:
Were he to win his appeal, two major consequences would follow, particularly given that the appeal judgment will have wider application than his own specific case:
- A secular court would have determined the church’s doctrine and reading of Scripture over the heads of, and in contradiction of, the bishops of the church
- Nobody would (unless what is currently held to be the doctrine was restated clearly by the church or the ruling over-turned by higher court) be able to continue to minister as a bishop, or be appointed as a bishop, if their conscientious understanding of their role and the Bible’s and the church’s teaching required them to refuse a licence to someone who was in a same-sex marriage.
The level of state control of the church that this represents is something that I have not heard anybody defend.
Reaction to the judgement has been fairly muted, but for those who have expressed regret to me, I have asked: Are you really saying that you would like the courts, and indirectly the Government, to determine what the Church might believe? Have you thought that through? Are the courts really the way to settle this issue?
Some have even complained about the Church money that has been wasted on this—to which the only reasonable response is: is was Jeremy’s bringing of the case which has led to the expense for the Church Commissioners, money which could have been put to much better use. If Jeremy’s supporters don’t want any more money wasted, then they need to encourage him not to appeal again. Leave to appeal has been granted—but quite clearly not because there is any chance of the verdict being overturned, but simply because it establishes the case in law. The initial ruling of the ET did not contribute to case law that sets precedent; the ruling of the EAT does, and in that regard the Church’s position is now secure. Jeremy’s costs have been borne by his legal team, who are committed to campaigning on LGBTI rights, and the Church has so far borne its own costs as a gesture of good will—but they are unlikely to do so any further, and will appeal for costs at the next stage.
It is time to move on to other things—as indeed Jeremy has, having some months ago resigned his licence as a priest in Lincoln Diocese.
(You can find the detailed analysis of the case, the initial judgement and the appeal process in the linked posts below.)
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