Another one I missed…
The Times reported (£) on 27 December that “A lawyer-turned-vicar is suing his church for discrimination after he was dismissed when his marriage ended.” The report relates to the dismissal of the Revd Jonathan Gould as minister of St John’s Downshire Hill, in Hampstead, and the subsequent proceedings before Employment Judge Lewzey and, in October, before Simler J in the Employment Appeal Tribunal: see Rev J Gould v Trustees of St John’s Downshire Hill  UKEAT 0115/17/0510.
St John’s Church, Downshire Hill, is one of the few surviving Church of England proprietary chapels. It is recognised as a church within the Diocese of London but has complete independence in financial matters. The church’s website explains that it is entirely self-supporting and all costs, including staff and building costs, are borne by the congregation. From the First World War, the congregation had leased the church building from the family trust which had owned it; in 2003, however, the congregation bought the church from the trust. The church receives no support from and makes no contribution to Diocesan funds.
The trustees of the church employed Mr Gould as a minister from 1 September 1995 until his summary dismissal on 1 August 2016 . He married in 1997. Difficulties in his marriage were raised with him by the trustees’ leadership team and in May 2015 it was proposed that he take a sabbatical from duties in order to attempt to restore his marriage . He did not wish to take the sabbatical but came under pressure to do so . His employment was terminated with immediate effect by letter dated 1 August and he was told that he would receive three months’ pay in lieu of notice. Simler J said that she had not been provided with a copy of that letter; but she understood that the reason for dismissal given in it was that the relationship of trust and confidence necessary for a continued employment relationship had broken down .
Mr Gould claimed that the real reason for his dismissal was the difficulties in his marriage. Had he not been married he would not have been dismissed and, therefore, he had been directly discriminated against on the ground of marriage, contrary to s.13 of the Equality Act 2010 read with s.39(2)(c) . The Employment Tribunal dismissed his claim.
Counsel for the Trustees argued that grounds relied on by Mr Gould as the reason for less favourable treatment were the fact of difficulties in his marriage and not the fact of marriage itself. He submitted that the fact of being married was a “but for” cause, whereas the difficulties in Mr Gould’s marriage were the proximate cause. He therefore contended that the scope of s.8 did not extend to marriage difficulties as a protected characteristic in themselves . Many married couples did not face marriage difficulties and many unmarried couples faced equivalent relationship difficulties. Therefore, “marriage difficulties are not a proxy for marriage” .
Simler J did not accept those arguments :
“… the difficulties in the Claimant’s marriage were, on his pleaded case, only significant to the Respondent because there was a marriage in which there could be difficulties. Paragraph 78 and other passages in his pleaded case make clear his contention that the decision to dismiss him depended on the fact that he was married and having marital difficulties, with the emphasis on ‘marital’ rather than ‘difficulties’. The reason marriage difficulties were problematic for the Respondent flowed from the importance attached to the institution of marriage by this church employer on his case” .
The decision-makers had a particular view of marriage and the behaviour that could be tolerated or not in a married person. The Employment Judge had been wrong to conclude that Mr Gould’s pleaded claim was that he was not dismissed because he was married: on the contrary, he was complaining that the discrimination flowed from the composite reason of his being married and having marital difficulties . On a reasonable reading of Mr Gould’s pleaded case, the facts gave rise to an arguable case that it was his married status and his marital difficulties that had led to his dismissal. That composite reason had been the reason for Trustees’ treatment of him and the case should have been permitted to proceed.
Simler J was satisfied that the Employment Judge had made an error of law in striking out his claim. The appeal was allowed and the decision striking out the claim on that ground set aside .
Mr Gould’s employment status was not at issue – presumably because St John’s is a proprietary chapel. Had he been an incumbent in a C of E parish, he would have been regarded as an office holder rather than an employee or worker for the purposes of employment rights: see Sharpe v The Bishop of Worcester  EWCA Civ 399.