Final submissions were made last week in the case of Jeremy Pemberton who has taken the former acting Bishop of my diocese to an employment tribunal. It was initially thought that a judgement would be forthcoming around now, but it appears as though the submissions from both sides were so detailed that the ruling will not now take place until some time next year.
The background is fully set out, with exploration of the questions, in an earlier post. In short, Jeremy lived in Southwell, and had ‘permission to officiate’ in this diocese, but was a hospital chaplain in Lincoln diocese. When he entered a same-sex marriage, he had a disciplinary discussion with the Bishop of Lincoln, who did not (however) remove his license; that would have required a full, legal, disciplinary process. In this diocese, his PTO was removed, which required no process other than a meeting and a decision, since PTO has no legal standing. He was then appointed to a new job as a chaplain within this diocese, and the hospital required that he had a license from the relevant diocese. Since the bishop here had removed his PTO, he naturally refused to grant a license, taking the view that Jeremy was not in good standing with the Church, as he had entered a same-sex marriage against the explicit direction of the House of Bishops’ recent statement. To make matters slightly more complicated (if that were needed), the diocese was in vacancy, so the person responsible was the Acting Diocesan Bishop, Richard Inwood. (Come to think, that wasn’t very short…)
One of the questions that I raised in discussion is why Jeremy was taking the bishop to court—since the diocese was not the potential employer. Peter Ould put it like this:
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.
Frank Cranmer, over on his Law and Religion blog, also highlights this point:
The PA report overlooks the crucial point in all this: was there any kind of employment relationship between Pemberton and the Acting Bishop of Southwell & Nottingham or was there not? If there was not, then the issue of whether or not the Bishop was with his rights to withdraw Pemberton’s PTO presumably falls away: Employment Tribunals adjudicate almost exclusively on matters of employment, not on general contractual or supervisory relationships…
Since this is UK law, the obvious question to ask is: is there a precedent? And the answer is ‘Yes’: the case of Norad Halawi, who lost her job at Heathrow Airport. Christian Concern reported it as follows:
The Court of Appeal has today ruled that a Christian worker who lost her job at Heathrow airport after spurious ‘anti-Islam’ complaints were made against her, has no employment protection rights.
The conclusion drawn from this was that Christians are losing their rights to practice freedom of belief.
The case raised important issues about the disparity of treatment of Christian and Muslim workers. Nohad says her substantive complaints were effectively ignored by World Duty Free but that the company acted immediately to end her livelihood when unsubstantiated complaints were made against her. She believes that she lost her role because she spoke up for the freedom of Christians and dared to stand against inappropriate conduct by a group of Muslim employees.
But as Frank Cranmer points out in his comment on that case, the case actually said nothing about discrimination on the grounds of religious belief.
Whether or not the case does, in fact, raise issues about disparity of treatment as between Christian and Muslim workers we shall never know, because that is not what the judgment is about: the issue of religion was not mentioned. The point at issue was whether or not Mrs Halawi, who provided her services to WDF through her own company, had an employment relationship with WDF of a kind that gave rise to enforceable employment rights. The Court of Appeal decided, on the facts, that she did not – and absent such a relationship, any further argument about discrimination in employment, religious or otherwise, simply falls away.
The situation in the Pemberton case does not have quite the same complexities involved in sub-contracting employment, but it does have this one thing in common: the respondent (the acting bishop) was not the employer, so (as in the previous case) the tribunal is technically unable to make a judgement.
The question then is why the tribunal heard the case in the first place—but a tribunal did hear the case of Mrs Halawi, so that does not tell us anything. The difficulty of all this is shown by the glimpses we have had of the debate; Sean Jones, representing Pemberton, commented:
They are saying it’s not the substance, it’s the label. [The doctrine of marriage as one man and one woman] was not drawn up to prohibit same-sex marriage.
When the discussion in an employment tribunal starts trying to reflect on the reasons behind marriage being gender differentiated (something on which theologians find it hard to agree) you know you are in trouble.
Campaigners on both sides have hoped that the tribunal ruling might offer some decisive clarification of the position of the church. But my suspicion is that, in the end, the ruling will tell us precisely…nothing. In other words, it is likely not to find in Pemberton’s favour. If so, there will no doubt be rejoicing from those who support the Church’s current teaching position. But there will be no small irony if that arises from a logic which was previously seen to signal an anti-Christian trend in culture.
Having said that, as Frank Cranmer wisely cautions: ‘we’ve made the wrong call before…
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