In the case of Pemberton v Inwood, an Employment Appeal Tribunal held that a bishop's refusal to grant a licence to a priest who had entered into a same sex marriage was not discriminatory on the grounds of sexual orientation or marriage, as he was permitted to rely on the religious occupational requirement under the Equality Act 2010.
The Equality Act 2010 (EqA 2010) provides that discrimination occurs when someone is treated less favourably because of a protected characteristic. Protected characteristics include sexual orientation and marriage and civil partnership.
Paragraph 2 of Schedule 9 EqA 2010 sets out limited occupational requirement (OR) exceptions that employers or qualifications bodies may be able to rely on in order to avoid liability for discrimination. One exception is where a qualification relates to employment which is for the purposes of an organised religion.
A Church of England priest (the Claimant) had married his same sex partner. Following the marriage he was offered a job as a hospital chaplain which was conditional upon him obtaining a relevant licence from the bishop (the Defendant).
The Church of England guidance on same sex marriage clearly states that it is not in line with the teachings of the Church of England and it would "not be appropriate conduct for someone in holy orders to enter into a same sex marriage". Consequently, the bishop refused to grant the licence to the priest on the basis that the priest's same sex marriage was inconsistent with the Church's teachings.
The priest brought claims for sexual orientation and marriage discrimination and harassment related to sexual orientation.
Although the bishop's actions were potentially discriminatory, the ET found that the religious OR exception applied because the priest's offer of employment was "for the purposes of an organised religion". Therefore, the bishop had acted lawfully by refusing to grant the licence.
The EAT upheld the ET's decision and dismissed the appeal.
The priest argued that as the employment was within the NHS, it was not for the purposes of an organised religion. However, the EAT found that it was not the nature of the organisation that mattered for the OR exception in Sch. 9 Para. 2 EqA 2010 to apply, but the purpose of the employment, which in this case was for religious purposes.
It found that the Tribunal had been entitled to conclude that it was because of the priest's failure to follow the Church of England guidance that had led the bishop to apply to the requirement for the priest not to be in a same sex marriage.
The EAT considered that another Bishop may have acted differently and not applied the requirement in the same way. It concluded that it was only appropriate to consider this bishop's application of the requirement and it was not for the tribunal to decide whether another bishop's actions may be preferred.
The EAT concluded that it considered the case was suitable for leave to be given to appeal to the Court of Appeal, should such an application be made.
Notwithstanding the decision in this case, the OR exception within the EqA 2010 is very narrow and employers should be wary when seeking to rely on such exceptions. It is rare that the religious OR is successfully applied and therefore not surprising that permission to appeal to the Court of Appeal has been granted. It should also be noted that this case turns on its specific facts.