Religious beliefs over secular values

The UK’s first discrimination legislation was enacted over 50 years ago and since then the protection provided by equality laws has become an increasingly accepted feature of societal relationships. It is now quite difficult to imagine that what is now unlawful discriminatory conduct was once quite openly engaged in by private employers and public institutions alike.

However, it has always been the case that discrimination legislation has accommodated certain exceptions to its basic tenets. One such area is employment for the purposes of an ‘organised religion’. This particular exemption was considered in detail in the Employment Appeal Tribunal decision of The Reverend Canon J C Pemberton v The Bishop of Southwell and Nottingham.

The bishop refused to grant Reverend Pemberton the licence he needed to take up a position as a chaplain at an NHS trust because Mr Pemberton was in a same-sex marriage. Ordinarily, this would have amounted to discriminatory conduct in relation to the protected characteristics of marriage and sexuality.

However, the EAT found the bishop was able to avail himself of the exception provided by paragraph 2 of schedule 9 of the Equality Act 2010. Paragraph 2 allows a qualifications body to require the recipient of a relevant qualification not to be married to someone of the same sex if it can show that it is applying said requirement in relation to employment which is for the purposes of an organised religion, and which is being imposed so as to comply with religious doctrine.

Pemberton argued that a requirement not to enter into a same-sex marriage could not be regarded as something which was imposed to comply with the doctrines of the Church of England. He pointed out that the provision of canon law which refers to marriage as being between one man and one woman also says that it is a lifelong union for the purposes of having children, and yet the church allows for divorce and re-marriage and accepts that marriage might be between those who are infertile.

He also considered it relevant that individual bishops are left to determine whether clergy who decide to enter into a same-sex marriage should be deemed as no longer in good standing with their governing authority.

However, the EAT accepted the bishop’s arguments that:

• ‘Doctrine’ should be interpreted as the teaching or beliefs of a religion;

• It was incompatible with the doctrines of the Church of England to enter into a same-sex marriage; and

• Any inconsistency in the way the relevant doctrines are applied was irrelevant.

As a result, Pemberton lost his appeal, although the judge gave him permission to appeal to the Court of Appeal.

This decision could be seen as shift away from what has been a reluctance on the part of the courts to give more weight to religious beliefs than secular values in other recent cases. However, it is important to bear in mind that in this case reliance was placed on a specific exemption in the Equality Act which had been enacted for religious purposes.The Church of England’s position may change in time, but, for now anyone employed to provide guidance on the teachings of the church needs to be mindful of the serious impact it could have on their career if they choose to enter into a same-sex marriage.

Alex Bearman is a partner in the employment team at Russell-Cooke

@RussellCooke www.russell-cooke.co.uk

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