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
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
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
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
"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
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
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
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
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.