EAT (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.
Eady QC HHJ
[2016] UKEAT 0072 – 16 – 0712
Bailii
Equality Act 2010
England and Wales
Employment
Updated: 26 January 2022; Ref: scu.572025