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Getting hitched sees hospital chaplain lose licence

23 June 2015

Ministers in the Church of England seem to be getting quite litigious. I recently wrote of a vicar who went all the way to the English Court of Appeal claiming that he had been unjustifiably dismissed.

The court ruled that he was not an employee, but rather that he was a person answering a call to the Ministry and was in a different category to people who are employed.

Very recently, the Rev Canon Jeremy Pemberton was stripped of his licence to officiate in the Diocese of Southall and Nottingham where he lives, following his high profile civil union to his husband Laurence Cunnington. He brought a claim for discrimination under the Equality Act in Nottingham, and the Bishop of Southall and Nottingham was a defendant.

Technically Pemberton was employed by the National Health Service as a hospital chaplain rather than by the church, but the bishop’s decision meant the offer of his promotion with the National Health Service was withdrawn.

He insisted in evidence that no one has the right to tell you who you can or cannot marry. When asked by the lawyer for the diocese if he was going against the teachings of his faith by marrying a man, Rev Pemberton resolutely said: “No, because I had a civil marriage not a Christian one”.

He thought getting married was the moral thing to do.

The local bishop relied on a ruling of the House of Bishops who issued pastoral guidance in 2014, effectively banning clergy from same sex marriage.

Pemberton said how he had been embarrassed and humiliated by the very public removal of his licence and said that as a consequence he was no longer of good standing within the church.

He went on to cite the case of the parish priest in North London who married his same-sex partner last summer but did not have his licence withdrawn because of the special rights enjoyed by parish clergy.

Pemberton added: “If I had chosen to marry a woman civilly there would be no problem, although the bishop may have been surprised”.

The Pemberton case is very recent and the English Employment Tribunal is yet to decide the matter.

The courts in New Zealand do scrutinise employers’ policies and instructions, and have on occasion found them to be unlawful. This is especially so in cases of discrimination.

One interesting demonstration of this involved the Maori Television Service. Ngarimu Daniels worked for the Maori Television Service and was the weekday news presenter.

While still employed, she raised employment relationship problems which flowed from her being an activist opposing the passing of the Foreshore and Seabed Act in 2004.

Late in that year, she protested outside Helen Clark’s Mt Albert electoral office with a group of others opposing the passage of the bill later that day.

On one level the protest was peaceful but it certainly involved the use of whistles, banners and flags. She had not told her employer of her intensions before joining the protest. The general manager thought that if the government became aware of her activism, then Maori Television might be seen as supporting the protest.

Daniels was instructed not to take part in future protest meetings. She was told that to do so would jeopardise her continuing employment with Maori Television.

She was unhappy with this instruction and took the matter to the Employment Relations Authority.

The authority held that the instruction was unlawful as it involved discrimination on the prohibited ground of political opinion. It was an unwarranted intrusion into her private life and lessened Daniels’ job security.

The authority also considered it unreasonable that the instruction was given in “bald and absolute terms” and gave little guidance on what amounted to protest and whether the ban included anything and everything capable of being considered protest.

It also considered it relevant that other employees who had taken part in protests had not been told that this would be detrimental to their employment.

Daniels was awarded $16,000 compensation in total for discrimination as well for other claims she made.

Many of the courts’ decisions over recent years have focused on the tension between what an employee does in their private life and the degree to which the employer can manage or control their behaviour outside work. 

Both of these cases bring to the surface changing contemporary standards and the tension between what an employer is comfortable with and the affected person’s civil rights.

We live in a rapidly changing world and tensions such as these are going to occur more often. The shift is towards greater freedom for the individual and less power for the employer. No doubt readers will follow the Pemberton case with interest. A ruling will follow any day soon.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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