Today’s Church Times contains two items relating to the legal action taken by Jeremy Pemberton.
News report: Madeleine Davies Pemberton mounts a legal challenge over lost NHS job
and (same link, scroll down) Rob Clucas The Bishop’s ruling: a legal opinion.
From the news report:
…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”.
From the opinion article:
…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…