In 2014 the Reverend Canon J C Pemberton married his long term partner, of the same sex, pursuant to the Marriage (Same Sex Couples) Act 2013. Reverend Pemberton had been ordained as a Church of England priest in 1982. In 2007 he resigned his parish and separated from his wife. They were subsequently divorced. He took up an appointment as a Community Chaplain in 2008. In due course he became the Deputy Senior Chaplain and Deputy Bereavement Services Manager for United Lincolnshire Hospitals NHS Trust. He met his now husband in 2008 and by the autumn of 2008 they were living together.
According to NHS practice, Church of England priests are not appointed as chaplains without a licence from the Church, normally in the form of authorisation from the Bishop of the Diocese. In the period from 2008 to 2011 Reverend Pemberton. He was issued with an Extra Parochial Ministry Licence (EPML) by the Suffragan Bishop of Grantham and a Permission to Officiate (PTO) by the Bishop of Southwell and Nottingham.
In July 2013 Reverend Pemberton and his partner became engaged and on 12 April 2014 they were married. the wedding attracted press interest, including from the Mail on Sunday. Coverage from the same paper on 22 June 2014 asserted that “the first clergyman to enter into a gay marriage in defiance of the Church of England [had] been ‘sacked’ by his bishop”. Prior to his marriage the Bishop of Lincoln had written to and met with Reverend Pemberton. In March he wrote to Reverend Pemberton and stated:
… it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage … Like every clergyperson, at your ordination you undertook to ‘accept and minister the discipline of this Church, and respect authority duly exercised within it …
Following the marriage he issued a rebuke to Reverend Pemberton because he had:
… chosen to marry, knowing that for an ordained priest to enter into a same-sex marriage is contrary to the teachings of the Church of England and the clear, recent statement of the House of Bishops…[which was]…inconsistent with your ordination vows and your canonical duty to live in accordance with the teachings of the Church of England.
In May 2014 Reverend Pemberton applied for a salaried post at Sherwood Forest NHS Trust. He was offered the job, subject to the usual requirement to obtain C of E consent. Instead of granting permission, in early June 2014 the Bishop of Southwell and Nottingham revoked his PTO. the job description issued by the NHS Trust included a “requirement to meet the requirements of the Church of England…in the provision of a chaplaincy service throughout the Trust”. It was also a requirement for the post holder to have “authorisation by the relevant faith community”. On 7 July the Bishop refused to grant the required EPML, explaining that:
In its pastoral guidance on same sex marriage, the Church of England House of Bishops reaffirmed that a same-sex marriage is inconsistent with the Church’s teaching on marriage. Entering into such a marriage involves the cleric acting in a way which is inconsistent with both his or her ordination vows and the canonical duty of all clergy to model the Church’s teaching in their lives. As Canon Pemberton recently contracted such a marriage, I revoked his Permission to Officiate in the Diocese of Southwell and Nottingham.
In the light of this, it would be inconsistent if I were to issue a licence to Canon Pemberton at this time.
By letter dated 30 July the Bishop confirmed that, without an EPML, Reverend Pemberton would not be able to officiate as a Priest of the Church within the Trust.
Reverend Pemberton commenced employment tribunal proceedings against the Bishop in September 2014, alleging that there had been unlawful direct discrimination because of sexual orientation and/or marital status and/or unlawful harassment related to sexual orientation. The tribunal decided that the EPML was a relevant qualification and failure to grant it as a result of having entered into a same sex marriage would amount to direct discrimination unless the Bishop could show that he could rely on the exception of a genuine occupational requirement. The tribunal decision was unequivocal in this regard:
…if there is a clear doctrine relating to the nature of marriage and which excludes same sex marriage for the purposes of the Church, rather than the State, and that doctrine requires obedience from the Priest by way of the Canons, then that is an end to the matter for our purposes. It matters not [what] we think about the appropriateness of the doctrine to current times. It is not for us to reconstruct the Church’s doctrines. Furthermore the transition between Civil Partnerships and Same Sex Marriage … is irrelevant. … there is the distinction between the Church and State. The constitutional convention means that the State cannot impose same sex marriage upon the Church….[it is] so obvious…the present doctrine of the Church is clear; marriage for the purposes of the Church of England is “between one man and one woman”.
It followed that the claim failed. Both parties appealed to the Employment Appeal Tribunal concerning (between them) the questions of “relevant qualification”, genuine occupational requirement and whether there had been harassment. Her Honour Judge Eady QC found no basis for disputing the decision of the Tribunal concerning “relevant qualification”. The Bishop had cross-appealed concerning the finding that the EPML was a relevant qualification. Again, Judge Eady confirmed the decision of the Tribunal that is was a relevant qualification.
Similarly, Judge Eady was also satisfied that the Bishop (and therefore the Church) was entitled to treat adherence to the requirement that marriage should be between and man and a woman as a genuine occupational requirement, thereby defeating the direct discrimination complaint. As for harassment, although the terminology used by the tribunal was hyperbolic (“affront to justice”) there was no error of law. Accordingly, both appeal and cross-appeal failed on all counts. However, Judge Eady acknowledged the importance of the issues and therefore indicated that the case was suitable for permission to be given to appeal to the Court of Appeal.