Pemberton v Inwood

Similar circumstances were addressed by the House of Lords in Watt (formerly Carter) & Ors v Ahsan [2008] 1 AC 696. The applicant for selection by the Labour Party as a candidate for local elections brought a claim under section 12 of the 1976 Act alleging unlawful discrimination on racial grounds. The House of Lords held, amongst other things, that in selecting candidates for local elections the Labour Party was not a body which conferred an authorisation or qualification needed for engagement in a profession or trade within section 12. Lord Hoffmann, with whom Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell and Lord Brown of Eaton-Under-Heywood agreed, dealt with the question of whether the Labour Party was a “qualifying body” for the purposes of section 12 at [18] in the following way:

“18 . . . logically the first question to be answered is whether the Labour Party is a qualifying body for the purposes of section 12. In my opinion, for the reasons given by Peter Gibson LJ in Ali v McDonagh [2002] ICR 1026, it is not. The notion of an “authorisation or qualification” suggests some kind of objective standard which the qualifying body applies, an even-handed, not to say “transparent”, test which people may pass or fail. The qualifying body vouches to the public for the qualifications of the candidate and the public rely upon the qualification in offering him employment or professional engagements. That is why section 12 falls under the general heading of discrimination “in the employment field”. But that is far removed from the basis upon which a political party chooses its candidates. The main criterion is likely to be the popularity of the candidate with the voters, which is unlikely to be based on the most objective criteria. That will certainly be true of selection by vote of the branch and I doubt whether greater objectivity can be expected of a selection committee. The members or selection panel want to choose the candidate who, for whatever reason, seems to them most likely to win or at least put up a respectable showing in the election.”

In Patterson v Legal Services Commission [2004] ICR 312 the sole principal of a firm of solicitors claimed, amongst other things, that she had been discriminated against on grounds of race under section 12 of the 1976 Act in relation to the grant and operation of a franchise enabling the firm to receive public funds for the provision of certain legal services. It was Mrs Patterson’s case that in granting a franchise and thus the right to display the relevant logo and, in effect, the right to do publicly funded work, the LSC conferred an authorisation which facilitated her engagement in the solicitors’ profession. Clarke LJ gave the judgment of the Court of Appeal. He noted at [73] that the Oxford English Dictionary defines “licence” as a formal permission from a constituted authority to do something and concluded that it was thus “a form of authorisation.” He went on at [77] to distinguish the case of Kelly v Northern Ireland Housing Executive & Ors in the following terms:

“Lord Clyde said, at p 847, that the exercise of a power to confer a qualification on a person is something more than providing for oneself the professional services which that person is already qualified to perform. In granting a franchise the commission is not simply selecting a solicitor to perform services which he or she is already qualified to perform but satisfying itself that the applicant meets the LAFQAS standard in order to ensure that the services which he or she will perform for his or her clients will meet that standard.”

Lastly, we were referred to the decision of the EAT in Kulkarni v NHS Education Scotland [2013] EqLR 34, a case which was concerned with whether NHS Education Scotland was a “qualification body” within the meaning of section 53 and 54 of the 2010 Act. Paragraph [24] is as follows:

“24.

Where an issue arises as to whether or not a respondent is a “qualifications body”, the tribunal’s task is, essentially, set by words of the statute. It requires first to decide what are the facts in the particular case. That involves determining what as a matter of fact was the interrelationship between the claimant and respondent, if any. Then, applying the statutory terminology, the tribunal requires to ask whether, in the context of that interrelationship, there was anything that the respondent could do which amounted to granting to the claimant an authorisation, qualification, recognition, registration, enrolment, approval or certification? The contextual setting for that list is clearly one of formality and connotes B (as referred to in section 53) being specifically declared by A as having attained a particular set standard. If A does not have the power to set such a standard and make such a declaration then A cannot be a qualifications body within the meaning of section 53.”

In relation to the PTO, Mr Linden on behalf of the Bishop reminded us that it was common ground that the qualification had to facilitate paid work and it was accepted that a PTO itself did not do so. It merely enabled one to officiate within a diocese with the consent of the incumbent of the benefice in question. Mr Linden says that it is not sufficient that the PTO should facilitate the grant of another qualification. It must itself facilitate the offer of work and even if it did, in principle, the ET found that it did not do so in this case. In any event, it is Mr Linden’s submission that the grant of a PTO and an EPML are not dependent upon each other and therefore, the grant of a PTO does not facilitate the grant of an EPML. The basis for both of them is good standing with the Church. However, as the ET had found having heard the Bishop’s evidence and Her Honour Judge Eady QC recorded at [102] of the EAT judgment, despite the need to be consistent in refusing the EPML, even if there had been no PTO, the Bishop would nevertheless still have refused to grant the EPML.

Further, in relation to the EPML Mr Linden says that is more like a character reference than a qualification or authorisation. It is a one off licence in respect of a particular place and is analogous to the approval of the Bishop to be part of his mission team within the Diocese. He says that its grant requires a subjective assessment of the relevant criteria rather than an objective standard and that each bishop forms his own view in the particular circumstances.

Conclusions:

I shall consider the PTO first. I bear in mind that it is agreed that the PTO does not in itself lead to remuneration and that it is accepted for the purposes of this appeal that remuneration is necessary for the activity to amount to a trade, profession or vocation. I make no comment upon whether this assumption is correct. I also bear in mind that Mr Jones has focussed therefore, upon the PTO facilitating the grant of an EPML. In any event, I can see no error of law in the EAT reasoning in this regard. Quite rightly, at [102] of her judgment, Her Honour Judge Eady QC set out the ET’s finding that even if the Canon had not had a PTO to be revoked the Bishop would have refused to grant him an EPML. She went on at [103] to deal with what was characterised as the correct question to ask which was “what would have happened if the PTO had not been revoked?” She concluded that the decisions in relation to the PTO and the EPML were consistent because they both reflected the Bishop’s view on the Canon’s “standing”, but that they were not interdependent and did not facilitate each other. I agree. Although it may be true that had the Canon had a PTO it would have been more likely that he would have been granted an EPML, that is because the grant of both the PTO and the EPML are in part dependent upon the clergyman in question being in “good standing”. The fact that the same criterion is the basis for both “qualifications” (and I use the term in the loosest sense) does not mean that having one is dependent upon having the other or facilitates the grant of the other whether directly or indirectly. It is the fulfilment or failure to fulfil the necessary and identical criterion in each case which creates the similarity.

Further, as Her Honour Judge Eady QC found on the basis of the findings of fact made by the ET, the PTO and the EPML were not interdependent and did not facilitate each other, despite the fact that the Bishop referred to “inconsistency” in the 7 July Letter. The inconsistency would have arisen were a different view on “good standing” taken in relation to the grant of an EPML than had been taken when revoking the PTO, the underlying facts remaining the same. As Her Honour Judge Eady QC pointed out, the Bishop’s position was consistent in relation to good standing and the ET had found that the PTO and the EPML were not interdependent.

It seems to me that the circumstances are different from those in the Petty case in which the referee’s certificate was held to have facilitated the trade or profession as a judo coach whether or not that had been the purpose of the association when issuing the certificate. Had the grant of a PTO been necessary in order to obtain an EPML, or at the very least, whatever its intended purpose, had assisted the grant of an EPML, it is possible that there may have been some strength in Mr Jones’ argument. However, on the basis of the ET’s findings of fact, the PTO and the EPML were entirely separate, although the grant of both was based upon the same criterion.

I can also find no error of law in the EAT’s treatment of the issue of whether the EPML is a “relevant qualification.” It is clear that the EPML was a condition of the employment on offer. It was needed for, or, at the very least, would have facilitated the appointment and it is common ground that the position of Chaplaincy and Bereavement Manager amounted to a “vocation” for the purposes of section 212 of the 2010 Act. I am unable to accept Mr Linden’s submission that the EPML was equivalent to a character reference and could not amount to a “relevant qualification”. I agree with Mr Jones that it is quite clear from the job description that the person taking up the post was required to hold the appropriate licence and be “accredited” by his or her faith body. It was for that reason that they were to be employed. This is consistent with the way in which the Chaplaincy Manager described the situation in his letter to the Bishop. He pointed out that the person taking up the post was required to have “recognised or accredited status with their faith community.”

I come to this conclusion despite the fact that the decision to grant an EPML is one for the individual bishop concerned based upon that individual’s assessment of the particular applicant. That is an inevitable consequence of the structure of the Church of England and the authority of individual bishops. It is not suggested that a decision of this kind is made upon a whim. In fact, we were referred to the undisputed evidence of the Bishop in relation to the grant of licences to priests from different diocese. It entails obtaining a “Clergy Current Status Letter” from the “sending bishop” which contains specific paragraphs about prescribed matters. Those matters are also the subject of detailed Guidance Notes. It seems to me, therefore, that the decision in relation to the grant of a licence is subject to objective criteria even if different bishops may reach different conclusions.

The circumstances are not the same as those of the would-be political candidates in the Ali and Ahsan cases. Their selection would not have denoted any particular status at all and it is not clear that any objective criteria would be applied in the selection process. By contrast, the EPML amounts to an authorisation and a vouching to the public that the person in question is qualified and has a particular status within the Church of England which can be relied upon and which was arrived at by the application of particular criteria: Watt v Ahsan at [18]. That is the very reason it was required before the Canon could take up the post with the NHS Trust. As Her Honour Judge Eady QC pointed out at [108] of the EAT judgment, the Bishop on behalf of the Church of England was not simply applying a standard for his and its own purposes. Granting an EPML signifies to the NHS Trust in this case and through the Trust to the public that the individual meets a particular standard and has an appropriate status. The circumstances are analogous with those in the Patterson v Legal Services Commission case. In granting an EPML a bishop is vouching that a priest has the requisite status within the Church of England for the purpose of the outward facing role which the employment in question entails.

I would, therefore, dismiss the appeal in relation to the PTO, and the cross-appeal in relation to the EPML and the status of the Bishop as a “qualifications body.”

Is the Bishop entitled to rely upon the exception in Schedule 9 paragraph 2 of the Equality Act 2010?

Schedule 9 where relevant is as follows:

“2  (1) A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to employment a requirement to which sub-paragraph (4) applies if A shows that—

(a)

the employment is for the purposes of an organised religion,

(b)

the application of the requirement engages the compliance or non-conflict principle, and

(c)

the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

(2)

…

(3)

A person does not contravene section 53(1) or (2)(a) or (b) by applying in relation to a relevant qualification (within the meaning of that section) a requirement to which sub-paragraph (4) applies if the person shows that—

the qualification is for the purposes of employment mentioned in sub- paragraph (1)(a), and

the application of the requirement engages the compliance or non-conflict principle.

Her Honour Judge Eady QC dealt with these matters in the following way:

“112.

The question then arises as to whether the ET erred in concluding that the Respondent had applied a requirement that engaged the compliance principle for the purpose of paragraph 2(5) schedule 9? Here, I agree with the Respondent, the “doctrines” of the religion must refer to the teachings or beliefs of that religion, not to what might more narrowly be understood by “doctrine” within a specific religious community such as the Church of England. Whilst a court will not simply accept an assertion as to the doctrines of a religion, it equally cannot be expected to enter into theological debate to determine those doctrines for itself. The ET was entitled to find that the doctrines – the teachings and beliefs – of the Church of England were as stated by Canon B30 and, with specific regard to same sex marriages permitted by the Act, as evidenced by the Pilling report and the Pastoral Guidance (ET paragraphs 171-187). That being so, it was equally entitled to accept that those doctrines were clear: marriage for the purposes of the Church of England was “between one man and one woman” (paragraph 188).

113.

The ET had then to determine, however, whether the requirement applied by the Respondent (that the Claimant not be in a same sex marriage) was applied so as to comply with the doctrines thus identified. On this question, it is fair to say that the reasoning is hard to follow in places; the ET’s conclusions (see paragraphs 234-236) draw upon both the apparent incompatibility of the Claimant’s marriage with the doctrines of the Church and the conflict that thus arose with the Claimant’s “canonical duty of doctrinal obedience”. That duty arose from the Claimant’s oath of canonical obedience and was owed to the Respondent, as Bishop of the Diocese, to obey him in matters of canon law (see Long v Bishop of Cape Town [1863] 15 English Reports 756 at 776). The Respondent’s predecessor as Bishop had written to the Claimant on 17 March 2014, making clear his understanding of the Church’s position in respect of same sex marriage and asking that the Claimant follow the House of Bishops’ Pastoral Guidance. The Claimant had declined to do so. It was that combination of circumstances that the ET permissibly concluded led the Respondent to apply the requirement that the Claimant not be in a same sex marriage (ET paragraph 202).”

Paragraph [202] of the ET decision is as follows:-

“We then get the letter he wrote to Ms Toor on 5 July … [the 7 July letter]. So that is clear, is it not? The reason for not granting the licence is a) the Respondent’s duty to uphold the Church’s doctrine: marriage between a man and a woman only within the Church; and b) the Claimant having “clearly and consciously acted in a way which was fundamentally inconsistent” with therefore the reiteration of the doctrine via the Pastoral Guidance and the clear stricture in relation to the consequences for priest [sic] such as the Claimant if he did not. That to us interposes issues of incompatibility by way of the marriage doctrine and also breach of the doctrine, because that is what it is, of canonical obedience.”

There are two central questions to be determined: was the EPML a qualification . . . for the purposes of employment . . . for the purposes of an organised religion (see Schedule 9 paragraph 2(3)(a)); and was the requirement not to contract a same-sex marriage applied in order to comply with the “doctrines of the religion” (see Schedule 9 paragraphs 2(3)(b) and (5))?

Mr Jones answers both questions in the negative. In summary, in relation to the first question he submits that the EPML would have qualified the Canon for the purposes of employment but that it was employment with the NHS Trust and not for the purpose of organised religion at all. He says that the question is for whose purpose is the employment and that the answer is the NHS Trust and not the Church of England. He submitted that it would be extraordinary if the Bishop or the Church had any control over the Canon’s duties as a bereavement counsellor. Furthermore, he says that a distinction must be made between employment with a religious element such as the post which the Canon wished to take up and one for the purposes of an organised religion.

In relation to the construction of Schedule 9 paragraph 2(1)(a) Mr Jones referred us to R (Amicus) v Secretary of State for Trade and Industry [2007] ICR 1176 which concerned the validity of regulations 7(2) and (3) and 20(3) of the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations were made for the purpose of implementing Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation so far as it related to discrimination on grounds of sexual orientation and contained, in regulation 7(3) amongst others, a derogation for the purposes of occupational requirements, including an exception in relation to employment “for the purposes of an organised religion”. Richards J concluded that on its proper construction the exception was very narrow and accepted that “for the purposes of organised religion” was a narrower expression than “for the purpose of a religious organisation”. He also accepted the example given that employment as a teacher in a faith school is likely to be “for the purposes of a religious organisation” but not “for the purposes of organised religion”: see [115] and [116]. In relation to the phrase “so as to comply with the doctrines of the religion” in regulation 7(3)(b)(i), Richards J held at [117] that the condition:

“ . . . is to be read not as a subjective test concerning the motivation of the employer, but as an objective test whereby it must be shown that employment of a person not meeting the requirement would be incompatible with the doctrines of the religion. That is very narrow in scope. . .”

Mr Jones also referred us briefly to Fernandez Martinez v Spain (2014) 37 BHRC 1, a case which was heard by the Grand Chamber of the European Court of Human Rights. In that case an ordained Roman Catholic priest married a woman in a civil ceremony. He was employed by the Spanish state as a teacher of Catholic religion and ethics in a secondary school. The renewal of his contract was subject to annual approval by the bishop. The teacher made his marital status public in an article about a movement for optional celibacy of priests. Thereafter, the Pope granted him a dispensation from celibacy. Nevertheless, the bishop decided not to propose the renewal of his employment as a teacher on the basis that he had made public his family situation and the fact that he was a member of the movement which challenged certain precepts of the Catholic Church together with the need to avoid scandal and to respect the sensitivity of parents as they might be offended if he continued to teach Catholic religion and ethics. His employment was terminated. It was held by majority that there had been no violation of Article 8 of the ECHR on the basis amongst others, that a fair balance had to be struck between the general interest in the effective respect for family life and the interest of the individual and that the State enjoyed a certain margin of appreciation. The court stated that:

“art 9 of the convention does not enshrine a right of dissent within a religious community; in the event of any doctrinal or organisational disagreement between a religious community and one of its members, the individual’s freedom of religion is exercised by the option of freely leaving the community.”: [128]

And

“ . . . but for very exceptional circumstances, the right to freedom of religion as guaranteed under the convention excludes any discretion on the part of the state to determine whether religious beliefs or the means used to express such beliefs are legitimate . . . the principle of religious autonomy prevents the state from obliging a religious community to admit or exclude an individual or to entrust someone with a particular religious duty . . ”: [129]

In relation to the second question, although Mr Jones accepts that the Church of England does not regard a same sex marriage as a “marriage” for its purposes, he says that it has no doctrine in relation to same-sex marriage at all and therefore, the requirement that the Canon did not enter into a same-sex marriage could not be necessary in order to comply with the “doctrines of the religion”. The only relevant Canon of the Church of England refers to marriage between a man and a woman and if the Bishop were to succeed in this defence Mr Jones says that it would be necessary for him to be able to point to an express provision in the Canons, the Thirty-Nine Articles, the Book of Common Prayer or the Ordinals expressly prohibiting clergymen to enter into same-sex marriages. There is no such provision and therefore, the Bishop cannot avail himself of the defence in Schedule 9 because he cannot satisfy the compliance principle. He also says that the matter must be approached from an objective standpoint: Amicus at [117].

Furthermore, Mr Jones says that the statement of Pastoral Guidance from the House of Bishops cannot be relied upon because it has not been approved by the General Synod and is not part of the doctrine of the Church of England. He also points to the fact that even at paragraph 27, the Guidance does not state the consequences if a priest enters into a same sex marriage. He says that the matter is left open to enable different bishops to exercise their discretion, that this is illustrated by the differing treatment that the Canon received from the Bishop and the Bishop of Lincoln, and that as a result, it is obvious that the “application of the requirement” by the Bishop in this case was not necessary to be compatible with the doctrines of the religion and was not imposed with reference to an objective test.

In this regard, Mr Gau on behalf of the Canon also took us to a report dated 6 August 2014 by the Diocesan Registrar of the Diocese of London in relation to a complaint made under the Clergy Discipline Measure 2003 against Reverend Andrew Foreshew-Cain. The Reverend Cain was an incumbent whom it was alleged had acted in a manner “unbecoming the office and work of a Clerk in Holy Orders” by entering into a same sex marriage. We were informed that he remained in post. The Registrar concluded that the complainant did not have a “proper interest” to bring the complaint. However, he also noted that: some had stated that the matter pertained to doctrine which did not fall within the Clergy Discipline Measure; that doctrine on a literal interpretation included all the teachings of the Church of England; that it is presumably for the House of Bishops to give a lead as to what should and should not be regarded as doctrine; that the Bishops had said in clear terms that in their view, entering into a same sex marriage would be inappropriate conduct for a member of the clergy; and that what was being alleged was essentially such conduct. However, Mr Gau submitted that the Report evidenced the fact that the Church of England did not consider the matter to be one of doctrine because otherwise a different route other than one of discipline would have been adopted.

Furthermore, Mr Jones submits that the Declaration of Assent contained in Canon C15 is not an undertaking never to differ or a bar to dissent and that marriage does not fall neatly within Canon C26. In this regard, Mr Gau referred us to [32] in the judgment of Arden LJ in Sharpe v Worcester Diocesan Board of Finance Ltd at which she recorded the evidence of a Professor McClean to the effect that the oath of canonical obedience was “largely symbolic” and that there was no sanction for disobeying a bishop or the oath of canonical obedience. He says therefore, that the ET was wrong to treat canonical obedience as if it were doctrine itself as he says it did at [202] of the ET decision.

He also criticises the reasoning in the EAT judgment at [112] and [113]. He says that simply because a same sex marriage is not within the Canons of the Church of England does not make it incompatible with them and that there is no reasoning as to incompatibility.

Mr Linden referred us to the Explanatory Notes both in relation to paragraph 2 itself and to the Marriage (Same Sex Couples) Act 2013 by which Schedule 9 paragraph 2(4) of the 2010 Act was amended to include sub-sub-paragraph (ca). However, it seems to me that they do not carry the matter any further forward. He also reminded us that section 13 Human Rights Act 1998 provides that:

“If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.”

He drew attention to the European Court of Human Rights decision in Hasan and Chaush v Bulgaria [2000] ECHR 30985/96 which was concerned with the choice of the Chief Mufti in Bulgaria. The court noted at [62] that:

“The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one’s religion protected by Article 9 of the Convention.”

Conclusions:

In relation to both questions I agree with Mr Linden and can find no error of law in the reasoning of Her Honour Judge Eady QC. In relation to the first question, it seems to me that although the EPML was a condition of employment with the NHS Trust, it is clear from the job description that although there were some duties which were of a general nature, the NHS Trust intended to employ a properly accredited minister of religion to carry out all aspects of the post, including conducting Church of England services if required. It required a clergyman properly licensed and approved by his bishop to carry them out. That person was to be based at the Faith Centre at the hospital. To put the matter another way, the focus or the purposes of the employment was that of organised religion. The appointee was not to be employed for some other purpose such as accounting, cleaning or the provision of medical services. Inevitably, the principal purpose of the NHS Trust was to provide medical services. However, in the circumstances, that does not prevent the EPML being for the purposes of employment with the NHS Trust for the purposes of organised religion. If Mr Jones were correct, the exception would have no purpose at all. All employment other than with a Church itself would fail to be “for the purposes of an organised religion.” The circumstances of this case are different from those under consideration in the Fernandez case and considered by Richards J in the Amicus decision. In Fernandez the priest was employed as a teacher. The approval by the bishop was for the purposes of employment as a teacher, a role in which he was not required to carry out any duties relating directly to organised religion. He was not required to officiate as a priest. Here, it was intended to employ the Canon specifically because of his status as a minister of religion and in part to conduct religious services. The position is not even analogous to that of a teacher in a faith school, considered by Richards J in the Amicus case. In this case, the employment itself was in part, “for the purposes of an organised religion”.

In relation to the second question, it seems to me that Her Honour Judge Eady QC was correct to conclude that “doctrines” for the purposes of paragraph 2(5) of Schedule 9 must be read more widely than what is considered strictly by a particular church or religious organisation to be “doctrine” by that organisation. As Mr Linden points out paragraph 2(5) uses the term “doctrines” and not “doctrine” and is intended to apply in relation to all religions. It seems to me that if one reads the sub-paragraph as a whole, in the context of the exception in paragraph 2 as a whole, it should be construed to mean the teachings and beliefs of the particular religious organisation which may be wider than what it itself labels “doctrine.” Even if that were not the case, in this case, Canon A5 itself refers to the “doctrine of the Church of England” in wide terms and states merely that such doctrine is to be found “in particular” in the specific documents referred to. Accordingly, it seems to me that Her Honour Judge Eady QC was correct to conclude that the ET was entitled to find that the doctrines, as in teachings and beliefs of the Church of England, were as stated in Canon B30 with specific regard in relation to same sex marriages to the statement of Pastoral Guidance from the House of Bishops. She was quite right to note that the Court cannot be expected to enter into a theological debate in order to determine the doctrines itself: see [112]. Indeed, the Court ought not to do so. She was also right to find that the ET was entitled to find that the doctrines in relation to marriage were clear.

It was not necessary, as Mr Jones suggested, that there should be an express provision prohibiting a priest from entering into a same sex marriage and spelling out the consequences if he did. The teaching and in fact, the doctrine of the Church of England (in the sense in which the Church uses the term) is quite clearly spelt out in Canon B30. Paragraph 1 of that Canon makes clear that the Church of England considers marriage to be between one man and one woman. By its very terms it delimits the concept of marriage in accordance with the teachings and doctrine of the Church in a way which excludes same sex marriage. Furthermore, it is made clear in paragraph 3 that a priest is expected to uphold what is described expressly as “the Church’s doctrine of marriage.” As Mr Linden pointed out, Canon B30 does not state expressly that the Church of England’s doctrine of marriage does not include polygamy but it is quite clear that it does so.

Although the Marriage (Same Sex Couples) Act 2013 has extended the meaning of marriage, the position of the Church of England is carefully preserved in sections 1(3), (4) and 11. Mr Jones conceded that the Church of England does not accept same sex marriage as “marriage” for its purposes at all. As the statement of Pastoral Guidance from the House of Bishops made clear at paragraph 9, since the 2013 Act, there has been a divergence between the general understanding and definition of marriage in law and the “doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.” A clear statement on marriage and same sex marriage is contained at paragraphs 9, 11, 12, 26, 27 and 28 of that document, including the need to obey the Church on these issues. Paragraph 26 states expressly that marrying someone of the same sex would be at variance with the teachings of the Church of England. Paragraphs 27 and 28 leave little to the imagination in relation to the effect upon a clergyman’s ‘good standing’ of entering into a same sex marriage. This is all the more so when coupled with the form of the Preface to the Declaration of Assent and the Declaration itself contained at C15 of the Canons and the requirement to exemplify the teachings of the Church contained at C26, to which reference is also made in paragraphs 23 and 26 of the statement of Pastoral Guidance.

In my view, the facts that the Bishop of Lincoln, in different circumstances, imposed a different sanction upon the Canon and that the Reverend Mr Cain (who was an incumbent at the time) was dealt with in another way are neither here nor there. Furthermore, although I do not consider that it has any particular weight at all, it seems to me that the Registrar’s report to the Bishop of London in relation to Mr Cain points not only to “doctrines” but also to ‘doctrine’ as including all the teachings of the Church of England. In addition, I consider the question of whether the oath of obedience is enforceable to be irrelevant. As Her Honour Judge Eady QC pointed out, the ET was entitled to take into account all of the matters she referred to at [113].

It follows that I also consider that Her Honour Judge Eady QC did not err in law in deciding at [113] of the EAT Determination that the ET was entitled to find that the requirement had been applied so as to comply (emphasis added) with the doctrines as found. Accordingly, I would dismiss the appeal in relation to schedule 9 paragraph 2.

Did the EAT and the ET before it err in law in deciding that the revocation of the PTO and the refusal to grant an EPML were not, without more, sufficient to amount to harassment?

Section 26 of the 2010 Act is concerned with harassment. Where relevant, it provides as follows:

“ (1) A person (A) harasses another (B) if—

(a)

A engages in unwanted conduct related to a relevant protected characteristic, and

(b)

the conduct has the purpose or effect of— (i) violating B's dignity, or 
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

. . .

(4)

In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

(a)

the perception of B;

(b)

the other circumstances of the case;

(c)

whether it is reasonable for the conduct to have that effect.

(5)

The relevant protected characteristics are— age; disability; gender reassignment; race;religion or belief; sex;sexual orientation.”

It is accepted that initially, the harassment claim was put purely upon the basis that the unwanted conduct for the purposes of section 26 was the revocation of the PTO and the refusal to grant the EPML. The claim was later broadened to include both the decision and the manner of communication whether taken separately or in aggregate.

The ET found at [242] that the revocation of the PTO and the refusal to grant the EPML were “unwanted conduct” for the purposes of section 26 and that the Canon would not have been subject to that conduct had he not exercised his rights under the Marriage (Same Sex Couples) Act 2013. The ET also found that the revocation of the PTO and the refusal to grant the EPML caused the Canon distress and that it was humiliating and degrading: [244]. In addition, the ET found that the decision “struck at the [Canon’s] self belief in a fundamental way”: [258]. However, the ET did not agree with Mr Jones that there was anything aggravating about the way in which the matter had been handled: [251] – [263]. It concluded at [270], as follows:

“270.

Stopping there, we accept as already stated that the Claimant was clearly distressed and felt humiliated and degraded by what had occurred. As to whether his dignity was violated, we are with Mr Linden. Despite the valiant efforts of Mr Jones, the Claimant would never have been in this position had he not defied the doctrine of the Church. In this case, context is all. We conclude in the context of matters, given that the Church via the Respondent acted lawfully pursuant to schedule 9 and is therefore not liable pursuant to s53, that it would be an affront to justice if we were to nevertheless find that what occurred constituted harassment. In the context of events we conclude that it was not.”

Her Honour Judge Eady QC dealt with harassment at [116] – [126] of her judgment. At [116] she noted the ET’s reasoning that the conduct in issue was unwanted and that objectively it created an adverse environment for the Canon but that “the [Canon] would never have been in this position had he not defied the doctrine of the Church” and that it would be “an affront to justice’ for the Bishop’s actions to amount to harassment when otherwise exempt from liability by reason of the Schedule 9 defence. She went on to consider the difficulties with that reasoning and to note that the focus of the appeal was in relation to the ET’s focus on the Canon’s conduct and its conclusion that it would be an “affront to justice” if a decision which was exempt under Schedule 9 could nevertheless constitute harassment. At [124] she concluded that the ET’s reasoning disclosed no error of law. She went on to note that the Bishop’s decision was not unexpected, that the Canon was aware that his marriage would be seen as in conflict with the teachings of the Church and he would be thus viewed as not in good standing. She went on:

“ . . . Moreover, although the Respondent’s decision would otherwise have amounted to an act of direct discrimination, Parliament had permitted a specific exemption from liability. If he were not permitted to make and communicate that decision without committing an act of unlawful harassment, that would create an inherent contradiction within the statute. That is not to say that the Respondent, acting as a qualifications body, could not commit an act of harassment in relation to the conferment of a relevant qualification but that would need something – some aggravating feature – more than simply the making and communication of a decision that fell within the schedule 9 exemption. Although poorly expressed, that is what I am satisfied the ET permissibly found. It adopted the correct approach, which allowed it to have regard to the context of the case. I therefore dismiss the appeal against the ET’s decision on harassment.”

It is accepted that the Schedule 9 defence does not apply to harassment. Mr Jones submits, however, that the way in which the matter was approached both by the ET and the EAT in requiring an additional “aggravating factor” over and above those otherwise required to establish a claim in harassment where the Schedule 9 defence is available amounts to writing the Schedule 9 defence into the harassment provisions in a way which is impermissible. He says that both the ET and the EAT fell into this error and that in addition, the EAT erred in finding that the Canon knew that the loss of good standing was an inevitable consequence of his marriage: EAT judgment at [34].

Mr Linden submits that the EAT and the ET’s reasoning is unimpeachable. He says that it is not reasonable to react in a way which fulfils section 26 and section 53(3) in relation to conduct in respect of which Parliament has provided a defence, where that defence is made good. Furthermore, he submits that Parliament cannot have intended that decisions which are authorised under Schedule 9 could then be rendered unlawful by being re-classified as harassment. He points out that section 26(4) requires the Tribunal when determining whether conduct falls within Section 26(1)(b) to consider amongst other things, the circumstances of the case and whether it is reasonable for the conduct to have the effect referred to in section 26(1)(b).

The elements necessary for liability under a very similar provision in section 3A Race Relations Act 1976 were analysed by Underhill J (as he then was) in his capacity as President of the EAT in Richmond Pharmacology v Dhaliwal [2009] ICR 724. Both Mr Jones and Mr Linden relied upon the analysis. It was that the respondent must have engaged in unwanted conduct; that conduct must have had the purpose or the effect of either violating the claimant’s dignity or creating an adverse environment for her; and the conduct must have been on the grounds of the claimant’s race. The President went on to consider section 3A(2) which provided that the conduct should “only be regarded as having the [proscribed] effect if having regard to all the circumstances . . . it should reasonably be considered as having that effect” as follows:

“15.

Thirdly, although the proviso in subsection (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. . . The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a “subjective” element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt . . . ”

Mr Linden says that: the provisions should not be construed in a way which renders the conduct for which Parliament has provided a defence, nevertheless capable of being re-packaged as harassment; and in any event, in all the circumstances of this case, it was not reasonable for the Canon to have reacted as he did.

Conclusions:

It seems to me that this is quite a narrow question of construction. I agree with Mr Jones that it would be impermissible to read in the defence in Schedule 9 paragraph 2 in relation to harassment which is not there. However, when deciding whether conduct has the effect referred to in section 26(1)(b), one is required to take into account the circumstances of the case and whether it is reasonable for the conduct to have had that effect: section 26(4)(b) and (c). It seems to me that in the context of this case, unless there are “aggravating features”, it cannot be reasonable for unwanted conduct which otherwise falls within the defences in Schedule 9 paragraph 2, to have had the effect proscribed in section 26(1)(b). To conclude otherwise would make a nonsense of providing the defence in Schedule 9 in the first place.

In any event, in this case, the ET found that there had been lengthy discussions with the Bishop and others in relation to the Canon’s intention to marry his same sex partner and their opposing positions were clear. Therefore, the consequences in relation to his standing cannot have been much of a surprise, despite the different approach adopted by the Bishop of Lincoln. In the circumstances, therefore, whether as a result of the statutory defence in relation to the same facts which amount to the unwanted conduct, or on the facts of this case, I agree with Mr Linden that it was not reasonable for the Canon to have reacted as the ET found that he did. Accordingly, I can find no error in Her Honour Judge Eady QC’s conclusion at [124] of her judgment and I would dismiss the appeal on this ground also.

Underhill LJ:

INTRODUCTION

I agree that both the appeal and the cross-appeal should be dismissed. I essentially agree with the reasoning and conclusions of Asplin LJ in her comprehensive judgment, but there are some aspects on which I would like to say something of my own.

THE DIRECT DISCRIMINATION CLAIM

As regards the question of whether the PTO and the EPML constituted “relevant qualifications” for the purpose of section 53 of the Act, I have nothing to add to the reasoning at paras. 40-42 of Asplin LJ’s judgment. For the reasons which she gives, I would hold that the PTO did not constitute such a qualification but that the EPML did. I would also, like her, reserve my position on whether it is in all cases necessary that an activity should be remunerated for it to be part of the carrying on of a profession (which includes a “vocation or occupation”): in Petty that was assumed to be the case as regards voluntary judo referees but the position as regards other kinds of putative profession may not be the same.

As regards the availability of the defence under Schedule 9 of the Act, I did not find the route through the statutory provisions entirely straightforward, and I would like to give my reasons in my own words, though I do not believe that they substantially differ from Asplin LJ’s.

We are here concerned with paragraph 2 of Schedule 9, which is headed “Religious requirements relating to sex, marriage etc, sexual orientation”. Its relevant terms are set out at para. 47 of Asplin LJ’s judgment. It is worth noting that it is not the only exception concerned with religion: paragraph 3 is headed “Other requirements relating to religion or belief”. The specific provision relied on by the Bishop in the present case is sub-paragraph (3), but it requires cross-reference to other sub-paragraphs. Specifically, sub-sub-paragraph (a) cross-refers to sub-paragraph (1) (a) (Footnote: ¹); and sub-sub-paragraph (b) requires reference both to sub-paragraph (4), which identifies the various types of “requirement” potentially exempted, and to sub-paragraph (5), which defines “the compliance principle”. Thus in order to rely on the defence under paragraph 2 (3), bringing in the various cross-references, the Bishop must show:

As to (a), the composite drafting is clumsy, because it uses the phrase “for the purposes of” twice. It is also to be noted that the provision is concerned only with qualifications for “employment” (see the definition at para. 47 in Asplin LJ's judgment), whereas section 53 is concerned with qualification for engagement in any trade or profession, which need not take the form of employment. However, we are in the present case concerned with a qualification which was needed in order to enable Canon Pemberton to be employed as Chaplaincy and Bereavement Manager, so any potential mismatch between the scope of section 53 and paragraph 2 (3) does not arise. I agree with Asplin LJ (and indeed with the ET and the EAT) that that employment was “for the purposes of an organised religion”. In this context the phrase “for the purposes of” must connote the nature of the work required by the employment. It is beyond question that a central and necessary part of the chaplaincy role was to act as a minister of the Church of England: indeed it was because the withholding of the EPML meant that Canon Pemberton could not do so – formally, that he could not perform any “offices and services” as such a minister (see the words of the 1967 Measure quoted at para. 13 above) – that the Trust felt unable to employ him. I will not repeat the points that Asplin LJ makes at para. 61 of her judgment, which are compelling. It cannot make any difference that acting as a minister of the Church of England was not the totality of the role: if the employment was for the purpose of so acting it is irrelevant that there were other purposes as well. It follows that the EPML was “for the purposes” of employment of the specified kind. It is true that an EPML may be granted in order to enable a minister to officiate in circumstances which do not amount to or involve employment. But in this context the question must be what was the purpose of the specific withheld EPML.

As to (b), I agree with Asplin LJ’s reasoning at paras. 62-66 of her judgment. In particular, I agree with her that what constitutes a “doctrine” for the purpose of the Act must refer to the teachings and beliefs of the religion in question and that what those teachings and beliefs are must in principle be decided by the Court itself on the basis of the evidence adduced to it. Of course in many cases it will be sufficient to refer to official statements of doctrine published by the recognised central authority of the religion in question; but not all religions will have such an authority, or there may be cases where it is clear that it uses the term “doctrine” in a specific sense which is narrower than that intended by the Act.

It is clear that the Canons of the Church of England must be a source of its “doctrines” in the statutory sense. Even if the effect of Canon A5 were that, from the Church of England’s own point of view, its doctrine consists only of things stated explicitly in the Thirty Nine Articles, the Book of Common Prayer or the Ordinals, this would be a case of the kind mentioned above where the religion in question uses the term “doctrine” in a narrower sense than the Act. But I do not in fact think that that is its effect. It is not simply the use of the term “in particular” noted by Asplin LJ: as I read it, although Canon A5 identifies the fundamental sources from which the doctrine of the Church derives, part of the purpose of the Canons as a whole is to state such doctrines more clearly or succinctly than may appear in those sources – Canon B30 being a case in point.

Once that point is reached, I think it is sufficiently clear that the Bishop withheld an EPML from Canon Pemberton “so as to comply” with the doctrine expressed in Canon B30 that “marriage is in its nature a union … of one man with one woman”. I have italicised the words “in its nature” because of Mr Jones’s submission that the doctrine there stated is only concerned with marriage as recognised by the Church of England, and that the Church takes no position on the different concept of marriage now introduced by the secular law. It seems to me that those words are inconsistent with any such distinction and that they state the Church’s position about the nature of marriage generally. If, however, there is room for doubt about that, it is clearly resolved by the Statement of Pastoral Guidance from the House of Bishops: see para. 19 of Asplin LJ’s judgment. Paragraph 26 says in terms that "getting married to someone of the same sex would … be clearly at variance with the teachings of the Church of England"; and paragraph 27 spells out that it would in consequence not be appropriate conduct for a person in holy orders to enter into such a marriage. It is immaterial that that Statement had not been adopted by the General Synod: it is plainly powerful evidence, which the ET was entitled to accept, as to the meaning and effect of Canon B30 and thus as to what the doctrine of the Church of England is on this subject.

HARASSMENT

Although I agree with Asplin LJ that the appeal on the harassment claim also should be dismissed, I should like to give my reasons in my own words, not least because of the reference made by both parties to my judgment, sitting in the EAT, in Dhaliwal.

I should start by noting that section 26 of the 2010 Act, which is set out at para. 67 of Asplin LJ’s judgment, is not in identical terms to section 3A of the Race Relations Act 1976, with which I was concerned in Dhaliwal. Section 3A read:

“(1)

A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1 (1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of –

(a)

violating that other person's dignity, or

(b)

creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2)

Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.”

One difference between the two sections is that in section 3A the conduct must be “on grounds of [the protected characteristic]” whereas in section 26 it need only be “related to” that characteristic. That may be a significant difference in some cases, and it means that element (3) in the analysis at para. 10 of my judgment in Dhaliwal, with the associated comments at para. 15, is redundant; but it is immaterial for our purposes, since it was accepted in the present case that the conduct complained of related to Canon Pemberton’s sexual orientation.

The other difference is that, although section 26 (2) has the same three elements as section 3A (2) (in short: B’s perception; the “circumstances”; and reasonableness), they are specified as matters to be taken into account in deciding whether the effect has occurred, whereas in section 3A (2) it was expressed to be a requirement of liability that it was reasonable that the conduct should have the effect in question. However, it was not suggested to us that that difference in the structure of the successor provision was intended to make any substantive difference, and I do not believe it does (Footnote: ²). Nevertheless it means that the precise language of the guidance at para. 13 of my judgment in Dhaliwal needs to be re-visited. I would now formulate it as follows. In order to decide whether any conduct falling within sub-paragraph (1) (a) has either of the proscribed effects under sub-paragraph (1) (b), a tribunal must consider both (by reason of sub-section (4) (a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4) (c)) whether it was reasonable for the conduct to be regarded as (Footnote: ³) having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4) (b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment (Footnote: ⁴) created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.

Applying that approach to the facts of the present case, it seems to me plain that the ET was entitled to find that the withdrawal of the PTO and the withholding of the EPML did not amount to harassment. I have no difficulty understanding how profoundly upsetting Canon Pemberton must find the Church of England’s official stance on same-sex marriage and its impact on him. But it does not follow that it was reasonable for him to regard his dignity as violated, or an “intimidating, hostile, degrading, humiliating or offensive” environment as having been created for him, by the Church applying its own sincerely-held beliefs in his case, in a way expressly permitted by Schedule 9 of the Act. If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive. (Footnote: ⁵) It would be different if the Bishop had acted in some way which impacted on Canon Pemberton’s dignity, or created an adverse environment for him, beyond what was involved in communicating his decisions; but that was found by the ET not to be the case.

The same conclusion could be achieved by treating the matters relied on above as part of the relevant circumstances under section 26 (4) (b), but I think that the focus on reasonableness in section 26 (4) (c) engages more directly with the reason why the claim ought not to succeed.

Although I have expressed myself slightly differently, I understand my reasoning to correspond in substance to that of Asplin LJ at paras. 75-76 of her judgment.

Lady Justice Gloster

I agree.