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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rev. J. Gould v Trustees of St John’s Downshire Hill [2017] UKEAT 0115_17_0510 (5 October 2017) URL: https://www.bailii.org/uk/cases/UKEAT/2017/0115_17_0510.html Cite as: [2017] UKEAT 115_17_510, [2017] UKEAT 0115_17_0510 |
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At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR MARTIN FODDER (of Counsel) Instructed by: Messrs Sugiyama and Co Meadow Lodge Lobswood Manor Tilford Road Lower Bourne Farnham GU10 3RW |
For the Respondent | MR THOMAS CORDREY (of Counsel) Messrs Bates Wells Braithwaite LLP 10 Queen Street Place London EC4R 1BE |
SUMMARY
SEX DISCRIMINATION - Marital status
The Employment Judge was wrong to conclude that this case did not engage the protected characteristic in section 8 of marriage. On a reasonable reading of the Claimant's pleaded case, the facts give rise to an arguable case that it was his married status and his marital difficulties as a married man that led to his dismissal. That composite reason was, on his case, the reason for the Respondent's treatment of him and that case should have been permitted to proceed.
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
The Facts
"14. Alex Chitra sent an email to [the Claimant] on 5 May 2015 asking to talk about [the Claimant's] martial situation and expressing concern about "how it not only affects you and family but the wider church family". On 7 May 2015 he followed with another email which stated as follows:
"What if the worst scenario occurs? Your marriage fails and you get divorced. I assume then your pastoral ministry at sjdh will come to an end. I hope this is a right assumption and not a presumption. We need an action plan therefore which the leadership team and wardens have agreed to and they're aware of well in advance. This is responsible planning as I see it. We need an action plan to enable a hand over for the functioning of core church affairs, guidance on seeking your replacement, Andy's future as curate in your absence etc."
15. On 19 May 2015 Beth told [the Claimant], and simultaneously a member of the LT, that she wished to move out of the marital home. On the preceding day, 18 May, the LT had held a meeting, with [the Claimant] present, at which a letter was read out and then given to him. The letter said:
"After much careful thought, discussion, and consideration of scripture, it is our unanimous view that the ongoing situation of the breakdown of your marriage is incompatible with your position as leader of the fellowship of St John's.
The evident effects on your behaviour, care of staff, and the unity and wellbeing of the fellowship mean that we cannot support a continuation of the present state of affairs.
We therefore propose that your undertake a sabbatical from all leadership, management, pastoral, and preaching duties at St John's for a period of four months, beginning on 22nd June 2015.
It is our earnest desire to see you and Beth reunited, and we hope that this time away will enable you fully to devote your physical, emotional, intellectual, and spiritual energies to the restoration of your marriage."
16. The obvious implication of this letter was that if [the Claimant] did not manage to restore his marriage within the suggested four-month sabbatical, he should not return to his position as minister."
As is apparent from the Claimant's pleaded case, the Respondent's letter of 18 May making the proposal for a sabbatical expressed the unanimous view that "the ongoing situation of the breakdown of your marriage is incompatible with your position as leader of the fellowship of St John's".
"20. On 11 July 2015 [the Claimant] met with Alex Chitra, John Lawson and Matt East (one of the LT) to discuss concerns about his marriage, governance issues and care of staff. [The Claimant] had read to him a document setting out concerns raised by the staff (he was not given a copy until 19 July). The document was couched in general terms and did not make clear which staff had said what.
Three particular comments were:
"You preach marriage, but you do not display biblical marriage yourself … marital breakdown is a 'terrible testimony' to believers and non-believers alike …"
and
"the standard you apply to others you do not apply to yourself. The communion is a good example, where you partake in communion while not in good standing with your own wife"
and
"We [i.e. John Lawson, Alex Chitra and Matt East] would add (and this is not included in staff statements per se), that the manner in which you respond to the concerns raised regarding your marriage by the leadership team is another example of your controlling behaviour. As far as I [presumably Alex Chitra] can see, not a single ordained member of the Christian community so far has stood up for biblical marriage! They have stood up for you, not for marriage! This is so perplexing for me as a lay member of the church, somehow there is a different theology applied for those in ministry. In fact you have now divided clergy vs lay over your marriage! To me, this is completely wrong and needs to be rectified.""
Eventually he did commence a sabbatical on 1 March 2016.
"52. [The Claimant] received a further email from all the Trustees on 29 July, inviting him once more to a meeting on 31 July or 1 August. The purpose of the meeting was described as follows:
"The Trustees have repeatedly made it clear that the meeting is to consider your sabbatical and potential plans for September so that the Trustees can make decision [sic] about the future. For the avoidance of doubt, one of the purposes of the meeting is to consider whether you should continue in employment at SJDH, including hearing your reflections from during your sabbatical on this topic. If you are unwilling to attend on either of the remaining future dates, then the Trustees will need to make this decision in your absence.""
"74. As the EAT made clear in Ezsias v North Glamorgan NHS Trust [2011] [UKEAT/0399/09] at [58] tribunals must be "on the lookout, in cases of this kind [i.e. where 'relationship breakdown' is the alleged reason for dismissal], to see whether an employer is using the rubric of 'some other substantial reason' as a pretext to conceal the real reason for the employee's dismissal".
75. In this case the real reason for [the Claimant's] dismissal all along has been the difficulties in his marriage, and the inability of [the Respondent] to accept this.
76. [The Claimant] had been at SJDH for 21 years and there has apparently been a sudden breakdown of trust between him and the Trustees in the past year alone. The only major factor to have changed is the status of his marriage. In addition, the breakdown of relationship, such as it is, is limited to the relationships between [the Claimant] and the Trustees and the former Leadership Team, not (to [the Claimant's] knowledge) the wider congregation. It is these same people who know most about [the Claimant's] marriage difficulties.
77. The following list of points is relied upon as evidence for the contention that [the Claimant's] marriage is the real underlying reason for his dismissal:
1) John Lawson's letter to [the Claimant's] wife, 12th July, 2014 'Our fellowship needs the minister's family to be united in love, which is not an extended separation'.
2) Alex Chitra's emails of 5 May and 7 May 2015 concerned [the Claimant's] marriage situation being incompatible with him staying as minister.
3) The 18 May 2015 letter from the Trustees and Leadership Team specifically referred to [the Claimant's] marriage as being 'incompatible with your position as leader of the fellowship at St John's'.
4) A major issue in the document setting out staff concerns read out to [the Claimant] on 11 July 2014 was his marriage. Specifically, and in addition to anything reputedly attributable to staff, the trustees say 'As far as I [sic] can see, not a single ordained member of the Christian community so far has stood up for biblical marriage!'
5) [The Claimant's] meetings with LT members in September 2015 raised the state of his marriage as the main cause for ongoing concern.
6) The 5 October 2015 letter from the LT asking [the Claimant] to resign focused on his marriage.
7) Notes of the Trustees' meeting on 7 November 2015 made by Alex Chitra state that issues discussed included 'JG's sinful and unloving pattern of authoritarian behaviour causing broken relationships at home …'
8) The Bishop's report of 2 December 2015 noted that 'Jonathan's marital situation has been raised by a number of correspondents'.
9) John Lawson contacted [the Claimant], whilst on his sabbatical, to say 'Jonathan, if you want to try and mend your marriage, go on google and put in Harry Benson. By the sound of it you have a lot in common'.
10) The mediation meetings with John Lawson and Alex Chitra focused on their difficulty in accepting [the Claimant's] marriage situation.
11) On 28 August 2016 Alex Chitra spoke to [the Claimant's] son, George, at SJDH and said words to the effect that 'due to the fact that there are marriage issues [the Claimant] must go; I have no evidence that anything else had changed'.
Direct discrimination
78. For the reasons set out above [the Claimant] alleges that the real reason for his dismissal was the difficulties in his marriage. If he were not married, he would not have been dismissed. As a result, he has been directly discriminated against on the ground of marriage, contrary to section 13 read with section 39(2)(c) of the Equality Act 2010."
The Employment Tribunal's Judgment
The Applicable Legal Principles
"8. Marriage and civil partnership
(1) A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.
(2) In relation to the protected characteristic of marriage and civil partnership -
(a) a reference to a person who has a particular protected characteristic is a reference to a person who is married or is a civil partner;
(b) a reference to persons who share a protected characteristic is a reference to persons who are married or are civil partners."
Under section 13 EqA:
"13. Direct discrimination
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
"9. The starting point must of course be the language of s.3 itself. In my view it is clear that (to use the terminology of the 2010 Act) the characteristic protected by s.3(1) is the fact of being married - or, to put it the other way round, that what is proscribed is less favourable treatment on the ground that a person is married. That is what the language used says. The same is true of the section in its pre-amendment form: 'marital status' naturally means the fact of being married. The relevant comparator is thus, likewise, a person who is not married. Since in any comparison for the purpose of the section the relevant circumstances must be the same but for the protected characteristic (see s.5(3)), the appropriate comparator will usually be someone in a relationship akin to marriage but who is not actually married: I will use the old and well-understood, albeit much deprecated, phrase 'common-law spouse' rather than the modern 'partner', which does not have so specific a meaning.
10. The paradigm case caught by s.3 is thus where a woman is dismissed - or otherwise less favourably treated - simply because she is married. Such cases may seem outlandish now, but they were very common well into the post-war era, even if they had become rarer by the time of the introduction of the 1975 Act. I think it likely that it was this kind of case that Parliament principally had in mind when s.3 was first enacted.
11. A rather less straightforward case is where the reason for the treatment in question comprises both the fact that the complainant is married and the identity of her husband - that is, where she is (say) dismissed not simply because she is married but because of who she is married to. On ordinary principles such a case will fall within s.3 because the fact that she is married is an essential part of the ground of the employer's action, even though the identity of her husband is an additional element. But it is important to appreciate that this will not be so in every case where a woman suffers less favourable treatment because of her relationship to her husband. It is essential that the fact that they are married is part of the ground for the employer's action. As Ms Sen Gupta succinctly put it, it is important to get the emphasis in the right place: the question is not whether the complainant suffered the treatment in question because she was married to a particular man, but whether she suffered it because she was married to that man. Some subtleties are involved here. In many, perhaps most, cases of this kind the ground for the employer's action will not be the fact that the complainant and her husband are married but simply the closeness of their relationship and the problems to which that is perceived to give rise: applying the other half of the 'two-part test' (see paragraph 7(1) above), a common-law wife would have been treated in the same way. The employer may in giving his reasons for the conduct complained of have referred to the fact that the two of them are married, or have used the language of husband and wife, but if that merely reflects the fact that in their particular case the close relationship takes the form of marriage, and he would have treated her the same if they were common-law spouses, then s.3 will not apply. Deciding whether the fact that the complainant is married - rather than simply that she is in a close relationship with the man in question - is the ground of the employer's action (in either of the ways identified in paragraph 7(2) above) will often be easy enough; but sometimes it may be more difficult. There will certainly be some cases where the reason is indeed 'marriage-specific': one example is the case of Chief Constable of Bedfordshire Constabulary v Graham [2002] IRLR 239 which I consider at paragraph 18 below.
12. Mr Burgher did not accept the analysis in the previous paragraph. He submitted that if, in a given case, the close relationship to which the employer objects takes the form of marriage there should be no need to ask anything further: the marriage is the ground of the action, irrespective of whether the complainant would have been treated the same way if she had been simply a common-law spouse. As for s.5(3), it all depends how you define the relevant circumstances: in this case, you cannot strip out the fact of marriage and yet leave in the equation the closeness of the relationship which is an incident of that marriage. That is a seductive submission, because often (though not always) to subject a spouse to a detriment because of his or her relationship to the other spouse will be unfair, and it is natural to feel that the law should provide a remedy; but in my view it is wrong. Although marriage and a close personal relationship usually go together, they are conceptually separate and are not inevitable corollaries of one another. They are properly to be treated as separate factors, save in the case where the fact of marriage is indeed the criterion for the action complained of.
13. I am reinforced in that conclusion by policy considerations. It is, I believe, commonly accepted that it will sometimes be legitimate for employers to accord different treatment to employees who are parties to a close personal relationship, for essentially the kinds of reasons alluded to by Atex in the present case - conflicts of interest and perceptions of favouritism, nepotism and the like; and such treatment may be 'less favourable'. Yet if the law were as Mr Burgher submits such treatment would be absolutely unlawful in cases where the parties in question were husband and wife, since direct discrimination is of course incapable of justification. That is not in my view a result that Parliament is likely to have intended to achieve, particularly since the identical treatment would not be unlawful (subject to any possible claim of sex discrimination or for unfair dismissal …) if the employees in question were in an equally close relationship but did not happen to be married: that seems to me an arbitrary and unacceptable anomaly. The approach which I favour, covering only cases where the employer is motivated (at least in part) by the fact of marriage as such, rather than by the closeness of a relationship which happens to take the form of marriage, seems to me essential if the law in this field is to remain principled and coherent. It leaves the section with a real, though less wide, sphere of operation: see paragraph 10 above."
The Appeal
"53. The tribunal went on to say that the issue of competence and compellability can only arise between people who are married to each other and it cannot affect any other relationship. They concluded
'it is therefore marriage specific and we find that the respondent has on the grounds of the applicant's marital status treated her less favourably than he treats or would treat an unmarried woman of the same sex'."
Conclusion