Wednesday, 7 December 2016

Employment Appeal Tribunal judgement in Pemberton case

Updated with diocesan press release

The Employment Appeal Tribunal has today issued its judgement in the case of The Revd Canon Jeremy Pemberton versus the Acting Bishop of Southwell & Nottingham, The Rt Revd Richard Inwood.

The full text - approaching 20,000 words - of the judgement can be found here (.doc format), or over here (.pdf format) or here as a web page.

There is a summary included in the full text which is reproduced below the fold. Note that the cross-appeals from the Church of England were also rejected by the court.

Here is a press release from Jeremy Pemberton:

Statement after Employment Appeal Tribunal ruling

I would like to thank HHJ Eady QC for the obvious care that she took to consider properly the novel and complex issues of law raised by my appeal. The result is, obviously, not the one my husband and I had hoped for. I appreciate that this case was a source of hope for many people and I am grateful that the judge has recognised its significance and indicated that its importance warrants permission to appeal to the Court of Appeal.

I am now going to take some time to consider the lengthy judgment with my husband, and we will decide on the best way forward, having taken advice from my lawyers. I would like to thank Laurence for his unwavering love and support throughout this process, my legal team of Sean Jones QC, Helen Trotter, the Worshipful Justin Gau, and Susanna Rynehart of Thomson Snell & Passmore – all of whom have been acting pro bono since 2015 – my family, friends and all those who have supported me thus far. I will not be making any further comment at present.

Here is a press release from the Diocese of Southwell and Nottingham:

Employment Appeal Tribunal ruling

For the second time, a tribunal has found in favour of the former Acting Diocesan Bishop, the Rt Revd Richard Inwood, on all the claims made against him by Jeremy Pemberton.

The Employment Appeals Tribunal in London upheld the decisions made by the Employment Tribunal held in Nottingham last year.

A spokesperson for the Diocese of Southwell & Nottingham said: “Churches across the diocese continue to offer a generous welcome to people from all backgrounds and we remain fully engaged in the Church’s exploration of questions relating to human sexuality.

“The Church of England supports gay men and women who serve as clergy in its parishes, dioceses and institutions. It has no truck with homophobia and supports clergy who are in civil partnerships, as set out in the House of Bishops guidelines in 2006.

“We recognise that it has been a long and difficult process for all those concerned, and we hold them in our thoughts and prayers.”

SUMMARY

SEX DISCRIMINATION – Marital status

SEXUAL ORIENTATION DISCRIMINATION

HARASSMENT

Discrimination – marital status – sexual orientation

Qualifications bodies – relevant qualification – sections 53 and 54 Equality Act 2010

Exceptions from liability – religious requirements relating to marriage – schedule 9 paragraph 2 Equality Act 2010

Harassment – section 26 Equality Act 2010

The Claimant is a Church of England Priest who married his long-term partner. This was a marriage between two persons of the same sex, made permissible by virtue of the Marriage (Same Sex Couples) Act 2013, the enactment of which the Church of England had opposed. As a result of this marriage, the Respondent revoked the Claimant’s Permission to Officiate (“PTO”) and refused to grant him an Extra Parochial Ministry Licence (“EPML”), which he needed to be able to take up a post as Chaplain in an NHS Trust. The Claimant brought ET proceedings, complaining of unlawful direct discrimination because of sexual orientation and/or marital status and of unlawful harassment related to sexual orientation, his claims being brought under section 53 Equality Act 2010 (“EqA”) which applies to qualifications bodies, as defined by section 54(2) EqA. The Respondent denied he was a qualifications body but, in the alternative, contended that any relevant qualifications (defined by section 54(3)) were for the purposes of employment for the purposes of an organised religion, falling within the exemption allowed by schedule 9 paragraph 2 of the EqA and he had applied the requirement that the Claimant not be in a same sex marriage because that was incompatible with the doctrine of the Church of England in relation to marriage (“the compliance principle”). The claim of harassment was further denied on its facts.

The ET found the Respondent’s refusal to grant the EPML did fall under section 53 EqA and was a “relevant qualification” within the meaning of section 54. That was not the case, however, in respect of the revocation of the Claimant’s PTO. The ET further held, however, that the EPML qualification was for the purposes of employment for the purposes of an organised religion and the compliance principle was engaged; thus the Respondent was exempt from liability by reason of paragraph 2 of schedule 9 of the EqA. As for the harassment claim, although the Claimant was caused distress by the Respondent’s conduct, which he found humiliating and degrading, this did not amount to harassment. Context was everything. The Claimant would not have experienced that (admittedly, unwanted) conduct if he had not defied the doctrine of the Church. Moreover, the Respondent had acted lawfully pursuant to schedule 9; it would be an affront to justice if his conduct was found to constitute harassment.

Upon the Claimant’s appeal and the Respondent’s cross-appeal.

Held: dismissing both the appeal and cross-appeal

The ET had correctly held that the EPML was a relevant qualification (and the Respondent thus a qualifications body) for the purposes of sections 53 and 54 EqA; the Respondent’s cross-appeal against this finding was dismissed. Equally, however, the ET had been entitled to find that the PTO was not a relevant qualification: it would not have “facilitated” the grant of the EPML on the facts of this case; it was the Claimant’s lack of “good standing” within the Church of England that underpinned the Respondent’s decision in respect of both.

The ET had further reached a permissible conclusion that the qualification was for the purposes of employment for the purposes of an organised religion, notwithstanding that the employer would have been the NHS Trust and not the Church. The Trust required its Chaplain to have an EPML for the purpose of carrying out the ministry of the Church of England; that was the purpose of the qualification and the employment. As for the doctrines of the Church, this referred to the teachings and beliefs of the religion and the ET had been entitled to find these were as stated by Canon B30 (“marriage is … a union … of one man with one woman …”), evidenced, in particular, by the House of Bishops’ Pastoral Guidance on Same Sex Marriage. The Respondent had applied a requirement that the Claimant not be in a same sex marriage so as to comply with the doctrines of the Church; it was not fatal to the ET’s conclusion in that regard that a different Bishop might not have done the same.

As for the harassment claim, the ET had permissibly found that the particular context of this case was highly significant and meant that it was not reasonable for the Respondent’s conduct to have the effect required to meet the definition of harassment under section 26 EqA. The Claimant had been aware that his marriage would mean that he would not be seen as in “good standing” within the Church of England. The Respondent’s decision was exempt from liability by reason of schedule 9 and there were no aggravating features arising from his decision or its communication. These were relevant factors to which the ET was entitled to have regard.

Posted by Simon Sarmiento on Wednesday, 7 December 2016 at 1:46pm GMT | TrackBack
You can make a Permalink to this if you like
Categorised as: Church of England | equality legislation
Comments

While this may be correct by a narrow reading of the statutes, injustice is injustice, especially when cloaked in law.

Setting aside its legal merits, this shows that the Anglican church in England can expect no help from the secular world. Whatever use "establishment" once was, it's long past. Equality is a fight that'll have to be fought, and won, from the inside, and given the balance of power, it'll be a long twilight struggle.

Posted by: James Byron on Wednesday, 7 December 2016 at 6:07pm GMT

“The Church of England supports gay men and women who serve as clergy in its parishes, dioceses and institutions. It has no truck with homophobia and supports clergy who are in civil partnerships, as set out in the House of Bishops guidelines in 2006."

How do they write this rubbish with a straight face?

Posted by: Daniel Berry, NYC on Wednesday, 7 December 2016 at 6:40pm GMT

“The Church of England...has no truck with homophobia..."

I grew up in the Southeastern US in the 1950s. I can still hear the tone of voice in which white ladies insisted, "Oh, no! We loved our ni**ers!"

Posted by: Daniel Berry, NYC on Wednesday, 7 December 2016 at 6:46pm GMT

It is nonsense on stilts to say the C of E has no "truck with homophobia" as long as clergy in same-sex relationships do not wed. Separate-and-unequal civil partnerships are unacceptable.

Disestablishment would make sense. Plus ça change, plus c'est la même chose. Some things never change.


Gary Paul Gilbert

Posted by: Gary Paul Gilbert on Wednesday, 7 December 2016 at 7:26pm GMT

The C of E has no "truck with homophobia" - had the people in this house roaring with laughter.

Posted by: Erika Baker on Wednesday, 7 December 2016 at 8:28pm GMT

"It has no truck with homophobia" [1]

FN1: Except that we institutionalize homophobia, as a CofE policy, when it comes to ordaining gay priests as bishops, to marrying gay people, or to "consequenting" Anglican provinces that do either of these things.

Posted by: Jeremy on Wednesday, 7 December 2016 at 8:34pm GMT

What I still don;t understand is why they say that NHS Chaplaincy is for the benefit of organised religion. When I spent a day in a hospital ward this week the chaplain on duty wasn't Christian. The one on duty a day later may have been. The role is not about religion at all, never mind organised religion.

Posted by: Erika Baker on Wednesday, 7 December 2016 at 9:17pm GMT

I am full of admiration for Jeremy for pursuing this at personal cost and making himself more vulnerable in what is a case of seeking justice. My hope is that when history is written, this will be seen more positively than it feels right now. I thank God for people like Jeremy who are prophetic for the church, but in the prophetic tradition get a rough ride in the pursuit of justice.

Clearly, the conversations and discussions which the church is engaging in have some way to go.

Posted by: Tim S on Wednesday, 7 December 2016 at 9:34pm GMT

20 000 words? Admittedly in the sciences, where word limits are lower, my PhD thesis clocked in at under 40 000 in its original form. It got a bit bigger after corrections, but still...that a single judgement is about half the length of a four-year piece of work is a tribute to, if nothing else, the depths of analysis of the judge.

The CofE's behaviour is, of course, deplorable.

Posted by: Interested Observer on Wednesday, 7 December 2016 at 11:14pm GMT

As Tim S observed, "people like Jeremy are prophetic for the church, but in the prophetic tradition get a rough ride in the pursuit of justice."

Much like the religious establishment at Jerusalem, the one in England is (still) stoning the prophets.

Posted by: Daniel Berry, NYC on Thursday, 8 December 2016 at 7:50am GMT

Regardless of the outcome of this case it is simply not true to say the C of E has no truck with homophobia. Just ask the young people I met last week in Oxford or the young man who has joined us from another church, Not only do 'we' have truck with homophobia 'our' structures, practices and refusal to offer pastoral rites to same sex couples actively facilitate homophobia.

Posted by: Andrew Lightbown on Thursday, 8 December 2016 at 10:42am GMT

I am full of admiration for Jeremy for pursuing this at personal cost and making himself more vulnerable in what is a case of seeking justice. My hope is that when history is written, this will be seen more positively than it feels right now. I thank God for people like Jeremy who are prophetic for the church, but in the prophetic tradition get a rough ride in the pursuit of justice.

Clearly, the conversations and discussions which the church is engaging in have some way to go.

Posted by: Tim S on Thursday, 8 December 2016 at 11:09am GMT

Now will people stop wasting time in the AC?

a liberal, global communion is needed

Posted by: S Cooper on Thursday, 8 December 2016 at 12:37pm GMT

So Interested Observer has a PhD in a science subject? S/he always seemed to me to speak too much sense to have one in theology.

Posted by: Jeremy Pemberton on Thursday, 8 December 2016 at 12:43pm GMT

Interested Observer: [Un]fortunately, this isn't actually especially long by the standards of the last 50 years.

Tim S: The real concern here is what costs order the judge will make. The principle of 'costs in the cause' awards costs to the successful litigant. Query in this instance whether costs are to be awarded on a standard or indemnity basis: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-44-general-rules-about-costs#rule44.3.

Whilst the court has a fairly wide discretion to determine how costs are to be awarded, it is possible that the Church lawyers will press for costs on an indemnity basis (where doubts are resolved in favour of the recipient of the costs award, i.e., the Church), and the court may feel inclined to support that contention on the grounds that Canon Pemberton has now lost twice (even if there may be some impulse to favour costs on the standard basis because of the ‘public interest’ element of his claim). Note that costs have to be paid in full within 14 days of the relevant costs order being made; Canon Pemberton will probably be paying for two silks (his own and that of the Church), plus juniors on both sides, plus two law firms, plus two sets of court fees, etc.

Whilst the judge noted the possibility of referring the matter to the Court of Appeal, the question is whether Canon Pemberton can fund this based on the now fairly high probability of defeat. If he decides to ‘charge at the guns’ how will he be able to stay away from the bankruptcy courts? Civil legal aid has now been rationed almost to a nullity.

If Canon Pemberton cannot cover the costs the question is then whether the Church will press him for payment and, if necessary, take enforcement action against him. We will then see just how ‘deplorable’ (to use Interested Observer’s expression) the behavior of the Church can be. However, Church House might be thinking it best to press him hard in order to deter future litigation of this kind (and their insurers will probably take the same view). There may be others in the Church/Gafcon who might wonder whether taking a hard line on costs will work wonders in enforcing clerical discipline, ‘pour encourager les autres’. Not nice, but perhaps inevitable.

As that lamentable judge, Lord Darling, once remarked, “justice in England is open to all – like the Ritz”.

Posted by: Froghole on Thursday, 8 December 2016 at 1:04pm GMT

Sorry - I note that Canon Pemberton's lawyers have been acting on a pro bono basis for more than a year. Still, I very much hope that the Church will be circumspect about their costs. In my view, it would be extremely invidious for him to have any exposure in this regard.

Posted by: Froghole on Thursday, 8 December 2016 at 5:21pm GMT

Last week, Justin Welby led a debate in the House of Lords on shared values in our national life; a few quotes seem relevant in the context of this judgement:

'Practices and loyalties that are not grounded in values of hospitality, generosity and welcome lead to a turning inward that strangles the hope of the common good.'

I can't think of anything more inward-looking and lacking these shared values than the Church's whole approach to LGBT people.

'There is no better example of the expression of good values than in Jesus’ parable of the good Samaritan, a story deeply embedded in our collective understanding of what it means to be a good citizen and which reminds us that our values have emerged not from a vacuum but from the resilient and eternal structures of our religious, theological, philosophical and ethical heritage.'

Yes, but it was irrelevant that Jeremy Pemberton was the most qualified for the job and had professional and pastoral expertise in chaplaincy. His marriage to someone of the same sex disqualified him from providing spiritual care to the sick, bereaved and dying. The House of Bishops’ opposition to equality legislation over the last decade or so and its zealous application of the letter of the law on marriage doctrine overrides anything that could be interpreted from the parables of Jesus, or His greatest commandment.

'Martin Luther King and Desmond Tutu did not accept the final authority of the rule of law when the law was unjust. Dietrich Bonhoeffer did not accept the final authority of the rule of law, democratically passed in a democratically elected assembly, over issues of German-Jewish citizens when the law was manifestly evil. We live in easier and happier times, but there is still debate over freedom of speech and an increasingly anxious approach to tolerance.'

Easier and happier times for some. The judgement will not lesson LGBT peoples' anxieties about tolerance; it only reinforces what is an unjust law.

'… the essential human dignity and equality of all human beings, regardless of gender, sexuality, ethnicity, religion or ability.'

A case of not practising what one preaches?

'[I]t also requires a renewal of intermediate institutions because otherwise nothing stands between the lonely individual and the over mighty state.'

Having been edged out of the Church, and with legal avenues diminishing, Jeremy Pemberton, and LGBT people more broadly, are now in that very position.

Posted by: Andrew on Thursday, 8 December 2016 at 6:10pm GMT

Welby thinks that the Nuremberg Laws (presumably what that Bonhoeffer namecheck refers to) were "democratically passed in a democratically elected assembly"? Wow. If you believe that the Church of England's got no truck with homophobia, you really can believe anything.

Posted by: James Byron on Thursday, 8 December 2016 at 10:39pm GMT

This judgment, while it might be right in law, is of no assistance to the Church. It will merely be another item added to the plethora of evidence that the Church is wholly out of step on this issue and dragging its feet because of fear of change. All eyes are on the House of Bishops now but even the most optimistic advocates of change (I am an advocate of change but not hugely optimistic) believe we will continue to see the CofE move like a mighty tortoise. They need to come up with something (and will) but we shall once again enter the debilitating trench warfare that marked the women bishops' debates. In the meantime the deck chairs are rusting in the icy Atlantic sea air (forget moving them around) and we continue to hang on to the shibboleth of unity in the Anglican Communion. It is complete nonsense and make no mistake the House of Bishops will be held to account for it.

Posted by: Anthony Archer on Thursday, 8 December 2016 at 11:30pm GMT

Jeremy's press release:
+ Gracious
+ Statesman like
+ Christian

The diocesan press release IMHO:
- High-handed
- Vindictive
- Puts down LGBT people

I won't comment on the judgment in case there is an appeal.

(BTW I think the summary in Simon's post is actually of the original ET judgement not the new Eat judgment which is not summarised)

Posted by: Kate on Friday, 9 December 2016 at 2:21am GMT

Pyrrhic victory, bishop.

{{{Jeremy & Laurence}}}

Posted by: JCF on Friday, 9 December 2016 at 11:24am GMT

Kate the summary at the bottom of the TA article is copied verbatim from the EAT judgement. It occupies pages 3 to 5 of the latter document.

Posted by: Simon Sarmiento on Friday, 9 December 2016 at 2:47pm GMT

I know it is only a small point, and I'm certainly not into titles but the Diocesan Statement gives the bishop the courtesy title of Rt Revd but does not give Jeremy his courtesy title of Canon...he is simply referred to as Jeremy Pemberton. I'm sure Jeremy could not care less about such things but "what is sauce for the goose....etc" To me as an outsider it feels belittling....explanations please Diocesan Press Officer.

Posted by: Robert Ellis on Friday, 9 December 2016 at 5:53pm GMT

Simon
But isn't that the section of the EAT judgment which summarises the ET judgement?

Posted by: Kate on Friday, 9 December 2016 at 10:08pm GMT

Kate. No, it's a separate item, produced in addition to the formal text of the EAT judgement, which is a summary of the latter.

Posted by: Simon Sarmiento on Friday, 9 December 2016 at 10:57pm GMT

In the concluding paragraph of her judgment, Judge Eady QC says: "Given the importance of the legal questions involved and the novel issues arising, in particular, in respect of schedule 9, I would consider this matter suitable for permission to be given to appeal to the Court of Appeal, should such an application be made."
It should be noted that this is only an expression of Judge Eady's view as to whether the case is one suitable for consideration by the Court of Appeal. Since an appeal to the CA would be a second appeal, only the Court of Appeal can grant permission to appeal to the CA; Judge Eady cannot herself grant that permission.

Posted by: David Lamming on Friday, 9 December 2016 at 11:11pm GMT

The press release from the Diocese of Southwell and Nottingham is simply Orwellian.

Posted by: Cynthia on Saturday, 10 December 2016 at 2:00am GMT

Meanwhile the same week on Coronation Street ( viewed by millions) Vicar Billy tells his Bishop he can't continue living a lie and resigns to be with his lover!

Posted by: robert ian williams on Saturday, 10 December 2016 at 3:45am GMT

"Welby thinks that the Nuremberg Laws (presumably what that Bonhoeffer namecheck refers to) were "democratically passed in a democratically elected assembly"?"

He has a history and law degree, from Cambridge. Which makes his ignorance of history, and law, all the more shocking.

The Nuremberg Laws were enacted in September 1935. Leaving aside the legitimacy of the 1933 general election, the Nazis managed to pass the Ermächtigungsgesetz, the enabling act, in March 1933, which bypassed all democratic processes and left Hitler as, essentially, a dictator.

If Welby thinks that Germany in 1935 was subject to the rule of law then he is a bigger fool than I usually take him for, and I can only hope that he enjoyed his time at Trinity, because he certainly didn't get much of an education there.

Posted by: Interested Observer on Sunday, 11 December 2016 at 12:19am GMT

Did the church claim costs against Jeremy P?

Posted by: S Cooper on Sunday, 11 December 2016 at 9:50pm GMT

"Did the church claim costs against Jeremy P? S. Cooper"

No, each side bears their own costs at the ET and the EAT. I think it's possible to claim costs in exceptional circumstances, but that wasn't the case here.

Posted by: Laurence Cunnington on Monday, 12 December 2016 at 9:27am GMT

Laurence is correct. Costs at an ET and EAT are normally borne by each side and only given in exceptional circumstances.

One of the questions Pemberton needs to consider in going to the Court of Appeal is that at that point the Church can ask Pemberton to pay its costs (if it wins). From my perspective the ET and EAT judgments are pretty clear on the main points debated and the chances of defeat again for the complainant are quite high.

Posted by: Peter Ould on Monday, 12 December 2016 at 12:29pm GMT
Post a comment









Remember personal info?

Please note that comments are limited to 400 words. Comments that are longer than 400 words will not be approved.

Cookies are used to remember your personal information between visits to the site. This information is stored on your computer and used to refill the text boxes on your next visit. Any cookie is deleted if you select 'No'. By ticking 'Yes' you agree to this use of a cookie by this site. No third-party cookies are used, and cookies are not used for analytical, advertising, or other purposes.