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23 April 2018

Court of Appeal clarifies approach to religious occupational requirements: Pemberton v Inwood [2018] EWCA Civ 564

4 mins

The facts

The appellant is a Church of England priest. The respondent was the acting bishop of the appellant’s diocese. The appellant married his same sex partner on 12 April 2014. In May 2014, he applied for a position as Chaplain and Bereavement Manager at Sherwood Forest Hospitals NHS Trust. The appellant required an Extra Parochial Ministry Licence (EPML) as an accreditation from his faith body in order to commence employment at the NHS Trust. The Bishop refused to grant the EPML because he considered that the appellant was in breach of his duty of canonical obedience by entering into a same sex marriage.

The appellant brought a claim in Employment Tribunal for direct discrimination because of sexual orientation and/or marriage, and harassment relating to sexual orientation. The respondent denied that he was a qualification body capable of discrimination. In the alternative, he contended that the religious occupational requirement exception applied.

The law

Direct discrimination is defined under section 13 of the Equality Act 2010 (EqA 2010). Direct discrimination occurs where A treats B less favourably than A treats or would treat others because of a protected characteristic. Protected characteristics are contained in section 4 EqA 2010 and include sexual orientation and marriage and civil partnership.

‘A’ in the definition of direct discrimination applies to a ‘qualifications body’ such that a qualifications body must not discriminate against a person by deciding not to confer a relevant qualification on that person because of a protected characteristic.

However, Schedule 9 paragraph 2 of EqA 2010 provides for limited religious occupational requirements on which qualifications bodies may rely in order to avoid liability in respect of discriminatory acts. These may include requirements not to be married to a person of the same sex or relating to sexual orientation. In order to rely on the occupational requirement exception, the qualification body must show that:

  • The employment is for the purposes of an organised religion; and

  • The requirement is applied so as to:
  • Comply with the doctrines of the religion (the ‘compliance principle’); or

  • Avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers (the ‘non-conflict principle’).

 The decision of the Court of Appeal

The Employment Tribunal at first instance found that the EPML was a relevant qualification, the respondent was a qualification body and that, although the respondent’s refusal to grant the EPML was potentially discriminatory, the religious occupational requirement exception applied such that the respondent’s actions were not unlawful.

The appellant appealed and the respondent cross-appealed in relation to the finding that the respondent was a qualification body. The Employment Appeals Tribunal dismissed the appeal and cross-appeal.

The appellant appealed and the respondent cross-appealed to the Court of Appeal and both were dismissed. The Court of Appeal upheld that the occupational requirement exception applied. It found that the employment was for the purposes of an organised religion; the focus and purpose of the employment was of an organised religion because the hospital had intended to employ a properly accredited minister. The Court of Appeal also agreed that the requirement not to contract a same sex marriage applied in order to comply with the doctrines of the religion and emphasised that ‘doctrines’ had to be construed to mean the teachings and beliefs of the organisation.

In relation to the appellant’s harassment claim, the court emphasised that, unless there were aggravating features, it would not generally be reasonable for conduct that is not unlawful discrimination, because of the impact of the occupational requirement exception, to have had the proscribed effect for a claim of harassment.

The case has clarified the court’s approach to the religious occupational requirement exception. In particular, the Court of Appeal emphasised that religious ‘doctrines’ must be read more widely than what is considered strictly by a particular religious organisation to be a ‘doctrine’ of that organisation. The case also highlighted that the employment need not be within a religious organisation for the religious occupational requirement exception to apply, rather that the focus and purpose of the employment must be of an organised religion.

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