AN NHS chaplain who is in a same-sex marriage has filed an employment-tribunal claim against the Archbishop of York and the acting Bishop of Southwell & Nottingham. The claim is being made under the Equality Act.

Canon Jeremy Pemberton (above) is Deputy Senior Chaplain and Deputy Bereavement and Voluntary Services Manager in the United Lincolnshire Hospitals NHS Trust. In June, he was offered a new job as Head of Chaplaincy and Bereavement Services in the Sherwood Forest Hospitals NHS Foundation Trust.

This was conditional on the granting of a licence by the Bishop of Southwell & Nottingham (News, 27 June).

In August, the Trust withdrew the offer, after the Bishop, the Rt Revd Richard Inwood, refused to grant the licence (News, 8 August). He was unable to do so, he declared, "in light of the pastoral guidance, and for reasons of consistency" -referring to the House of Bishops' pastoral guidance, which states that clergy should not enter into same-sex marriages. Canon Pemberton married Laurence Cunnington in April (News, 17 April).

On Monday, Canon Pemberton said: "I am deeply saddened that I have had to take this step against church authorities. However, I feel I have been left with little choice, having found myself being punished and discriminated against simply for exercising my right to marry. I will be making no further comment until these matters have been resolved through the court process."

Among those assisting Canon Pemberton in his claim are Helen Trotter, a barrister specialising in employment and discrimination, and the Revd Justin Gau, a barrister specialising in both employment and ecclesiastical law, and Chancellor of the diocese of Bristol.

On Tuesday, a spokesman for the diocese of Southwell & Nottingham said: "We have received notification of legal action by Canon Jeremy Pemberton, and at this stage we have no further comment to make." No comment has been received from the Archbishop of York.

Once an employment-tribunal claim is received by an employer, he or she is usually required to respond within 28 days. One of the uncertainties of this case is whether or not the Bishops can be defined as employers.

On Tuesday, Dr Russell Sandberg, senior lecturer in law at Cardiff University, said: "It depends upon the facts of the case - there is now no presumption that ministers of religion are not employees.

"Furthermore, the definition of employee for discrimination-law purposes is wider than [it is] for unfair dismissal."

Dr Sandberg also suggested that bishops of the established Church could be considered as holding a public office.

The case, if it is accepted by a tribunal, will also test the interpretation of the Equality Act (2010). Dr Sandberg said: "Organised religions can rely upon an exception from the normal rules forbidding discrimination on grounds of sexual orientation, either in order to comply with the doctrines of the religion, or to avoid conflicting with the strongly held convictions of a significant number of the religion's followers."

He warned, however, that the scope and extent of these exceptions was "largely unknown, given the lack of case law, and uncertainty which arose in parliamentary debates".

THE Equality Act 2010 gives a great deal of protection to the Church in Schedule 9(2), writes Rob Clucas. It permits exceptions from the main anti-discrimination provi­sions ("protected character­istics", including sexual orienta­tion) on either of two grounds: the "com­pliance principle" (a requirement may be made to comply with the doctrines of a religion); or the "non-conflict principle" (to avoid conflict with the "strongly held religious convictions of a significant number of the religion's followers").

A requirement not to be in a same-sex marriage seems lawful according to Schedule 9(2). Thus, on the face of it, it looks as though the withdrawal of the permission to officiate (PTO) from Canon Pemberton because of his same-sex marriage was lawful, in accordance with either the compliance or non-conflict principles.

But there are complicating factors. First, I understand that the post would be paid for by the NHS. In this situation, is the Church the employer, or the NHS Trust? The NHS Trust, as a public body, has specific positive duties in relation to the Equality Act and sexual orientation (and other protected characteristics), and it is not clear how these would be reconciled with the permitted discrimination under Schedule 9(2). Also, could the Church be a public body? This is at present unclear.

Second, there is a question mark about how adequately the Equality Act 2010 gives effect to the European directive that it was aiming to implement (transpose). Is the implementation of the European legislation defective in failing to require proportionality in the compliance and non-conflict principles of Schedule 9(2) of the Act? This was the view of the Joint Committee on Human Rights in its second report on the Equality Bill, concerning the amend­ments to the Bill that were made at committee stage in the House of Lords.

Where domestic legislation attempting to transpose the directive fails, and a case comes to court, there is a general obligation in EU law on the domestic court or tribunal to interpret the national law in a way that gives effect to European law. If the Act cannot be reinterpreted to comply with the directive, there may be a claim of direct effect, if the case is against a public body.

Whether a remedy is available to an individual will depend on the possibility of the direct effective­ness of the framework directive in the case of the Church's (or the NHS Trust's) being a public body in refusing to employ clergy in a same-sex marriages.

Canon Pember­ton's decision to take legal action against the Arch­bishop of York and the acting Bishop of Southwell & Notting­ham is interesting. The law here is complex and unclear. 

The best option for his success might be if the tribunal were to decide that the Equality Act 2010 is a defective implementation of the directive; that the Act needs to be reinterpreted to comply with the directive, introducing proportionality to the compliance and non-conflict prin­ciples; that the relevant employer is a public body; and that, in refusing to employ/grant PTO to a cleric in a same-sex marriage (though this had been permitted when his rela­­­tionship was not a marriage), the employer has acted dispropor­tion­ately, and so outside the law­ful exceptions of Schedule 9(2).
 

Dr Rob Clucas is Lecturer in Law at the University of Hull.