1. The Claimant's claims in respect of the revocation of his PTO and the refusal to grant an EPML were pursued as allegations of unlawful direct discrimination, defined by section 13:

"(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."

1. He also pursued a claim of unlawful harassment, as defined by section 26:

"(1) A person (A) harasses another (B) if -

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of -

(i) violating B's dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

…

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account -

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are -

…

sexual orientation."

It should be noted that the definition of harassment does not extend to conduct related to the protected characteristic of marital status.

1. The Claimant contended that the discrimination and harassment which he claimed to have suffered was rendered unlawful by section 53 of the EqA, which provides (relevantly):

"53. Qualifications bodies

(1) A qualifications body (A) must not discriminate against a person (B) -

(a) in the arrangements A makes for deciding upon whom to confer a relevant qualification;

(b) as to the terms on which it is prepared to confer a relevant qualification on B;

(c) by not conferring a relevant qualification on B.

(2) A qualifications body (A) must not discriminate against a person (B) upon whom A has conferred a relevant qualification -

(a) by withdrawing the qualification from B;

(b) by varying the terms on which B holds the qualification;

(c) by subjecting B to any other detriment.

(3) A qualifications body must not, in relation to conferment by it of a relevant qualification, harass -

(a) a person who holds the qualification, or

(b) a person who applies for it."

1. Section 54 provides the interpretation for section 53 purposes, relevantly as follows:

"54. Interpretation

(1) This section applies for the purposes of section 53.

(2) A qualifications body is an authority or body which can confer a relevant qualification.

(3) A relevant qualification is an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession."

1. Section 212(1) EqA is also relevant in so far as it provides that a profession can include "a vocation or occupation". Otherwise the terms "trade or profession" are not defined, although "vocation" has been said to be "a word of wide signification", analogous to a "calling" - the "way in which a man passes his life", Partridge v Mallandaine [1886] 2 TC 179.

1. By schedule 9 of the EqA, various exceptions are permitted in respect of liability for discrimination in the work context. By part 1, exceptions are provided in respect of occupational requirements. Specifically, by paragraph 2:

"2. Religious requirements relating to sex, marriage etc, sexual orientation

(1) A person (A) does not contravene [a relevant provision of the EqA] … by applying in relation to employment a requirement to which sub-paragraph (4) applies if A shows that -

(a) the employment is for the purposes of an organised religion,

(b) the application of the requirement engages the compliance or non-conflict principle, and

(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

…

(3) A person does not contravene section 53(1) or (2)(a) or (b) by applying in relation to a relevant qualification (within the meaning of that section) a requirement to which sub-paragraph (4) applies if the person shows that -

(a) the qualification is for the purposes of employment mentioned in sub-paragraph (1)(a), and

(b) the application of the requirement engages the compliance or non-conflict principle.

(4) This sub-paragraph applies to -

…

(ca) a requirement not to be married to a person of the same sex;

…

(f) a requirement related to sexual orientation.

(5) The application of a requirement engages the compliance principle if the requirement is applied so as to comply with the doctrines of the religion.

(6) The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.

(7) A reference to employment includes a reference to an appointment to a personal or public office.

…"

1. This is to be contrasted with the more generally applicable Genuine Occupational Requirement exception allowed by paragraph 1 schedule 9; specifically, there is no proportionality test under paragraph 2. I further note that the defence permitted by paragraph 2(3) allows that qualifications bodies may impose the requirements listed at sub-paragraph (4) either in deciding whether to confer a relevant qualification (section 53(1)) or in determining whether a person may retain a relevant qualification and, if so, on what terms (section 53(2)(a) or (b)); it does not extend to detriments for the purposes of section 53(2)(c), nor does it apply to harassment under section 53(3).

1. The Explanatory Notes to the EqA state that paragraph 2 of schedule 9 provides for a specific exception, which:

"790. … applies to employment for the purposes of an organised religion, which is intended to cover a very narrow range of employment: ministers of religion and a small number of lay posts, including those that exist to promote and represent religion. Where employment is for the purposes of an organised religion, this paragraph allows the employer … to make a requirement related to the employee's marriage or civil partnership status or sexual orientation, but only if -

? appointing a person who meets the requirement in question is a proportionate way of complying with the doctrines of the religion; or,

? because of the nature or context of the employment, employing a person who meets the requirement is a proportionate way of avoiding conflict with a significant number of the religion's followers' strongly held religious convictions."

The Notes continue:

"791. The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. Applying the requirement must be a proportionate way of meeting either of the two criteria described in paragraph 790 above.

792. The requirement can also be applied by a qualifications body in relation to a relevant qualification (within the meaning of section 54), if the qualification is for employment for the purposes of an organised religion and either of the criteria described in paragraph 790 above is met.

…

EXAMPLES

? This exception would apply to a requirement that a Catholic priest be a man and unmarried.

? This exception is unlikely to permit a requirement that a church youth worker who primarily organises sporting activities is celibate if he is gay, but it may apply if the youth worker mainly teaches Bible classes.

? This exception would not apply to a requirement that a church accountant be celibate if he is gay."

(1) Qualifications body and relevant qualifications

1. A qualifications body is simply defined as an authority or body which can confer a relevant qualification (section 54(2) EqA); a "relevant qualification" is then defined by section 54(3). Although much of the case law addressed to this question arose under different statutory provisions (largely, the legacy Acts, now replaced by the EqA), the language used remains materially the same. Whilst each of the cases to which I have been taken needs to be seen in the light of its own facts, some guiding principles can be seen to emerge.

1. Firstly, "relevant qualification" is broadly defined and is concerned not with the intention of the qualifications body but with the effect of the qualification; whether, as a matter of fact, it is needed for, or facilitates engagement in, a particular trade or profession. Thus, a national referee certificate granted by the British Judo Association was a relevant qualification as it facilitated engagement as a judo coach, regardless of the fact the Association did not grant the certification to that end; British Judo Association v Petty [1981] ICR 660 EAT. Similarly, the award of a franchise for the provision of legal services could amount to a relevant qualification as it facilitated engagement - made it "easier or less difficult" - in the applicant's profession as a solicitor; Patterson v Legal Services Commission [2004] ICR 312 EAT (paragraph 36) and CA (paragraph 75).

1. Whilst the definition is expressed in broad terms, it remains directed to the grant of the qualification, not a requirement for that qualification by another body for the purpose of access to particular engagements under its own commercial arrangements. It did not, therefore, extend to the requirement by a private health insurer, Private Patients Plan Limited ("PPP"), that doctors applying to be added to its list had to hold (or have held) a substantive NHS Consultant post or a certificate of higher specialist training given by the relevant committee of the Royal College of Surgeons; Tattari v PPP [1997] IRLR 586 CA, per Beldam LJ:

"23. … [section 53], referring as it does to an authority or body which confers recognition or approval, refers to a body which has the power or authority to confer on a person a professional qualification or other approval needed to enable him to practise a profession, exercise a calling or take part in some other activity. It does not refer to a body which is not authorised to or empowered to confer such a qualification or permission, but which stipulates that for the purpose of its commercial agreements a particular qualification is required."

1. Similarly, it would not cover the appointment of a professional to a particular panel for the purpose of carrying out remunerated work for clients; something more would be required, see Loughran and Kelly v Northern Ireland Housing Executive [1998] IRLR 593 HL, in particular per Lord Clyde:

"74. [Section 53] is concerned with the exercise or non-exercise of a power to confer a qualification … That is something more than a decision to demand a particular qualification before accepting someone as a recognised practitioner for the purposes of particular operations (Tattari …). It is also something more than selecting someone to provide for oneself the professional services which that person is qualified to perform. …"

1. The point was considered by the Court of Appeal in Ali and anor v McDonagh [2002] ICR 1026 CA, in which it was observed that an obvious application of the section (where there would be the requisite "something more") would include cases where:

"28. … a body has among its functions that of granting some qualification on, or authorising, a person who has satisfied appropriate standards of competence, to practice a profession, calling or trade. …"

In Ali, it was argued that the qualifications body was the Labour Party. The Court of Appeal disagreed: in selecting a candidate (assuming being a councillor could amount to engagement in a profession), the Labour Party was not conferring an authorisation or qualification:

"35. … It is not the type of qualifying body to which the section is intended to apply, its activities being for its own political purposes just as the activities of Private Patients Plan Ltd were for its commercial purposes. … we cannot accept that there is any conferment of approval … No status in any meaningful sense is … conferred. …"

1. Further, the qualifications body takes responsibility for the grant of the qualification, upon which others are able to rely. As opined in Watt (formerly Carter) and ors v Ahsan [2008] 1 AC 696 HL (another Labour Party case), an "authorisation" or "qualification":

"18. … suggests some kind of objective standard which the qualifying body applies, an even-handed, not to say "transparent", test which people may pass or fail. The qualifying body vouches to the public for the qualifications of the candidate and the public rely upon the qualification in offering him employment or professional engagements. …"

1. In the case of Kulkarni v NHS Education Scotland and anor UKEATS/0031/12, Lady Smith sought to provide a route map for the assessment required under section 53:

"24. Where an issue arises as to whether or not a respondent is a "qualifications body", the tribunal's task is, essentially, set by the words of the statute. It requires first to decide what are the facts in the particular case. That involves determining what as a matter of fact was the interrelationship between the claimant and respondent, if any. Then, applying the statutory terminology, the tribunal requires to ask whether, in the context of that interrelationship, there was anything that the respondent could do which amounted to granting to the claimant an authorisation, qualification, recognition, registration, enrolment, approval or certification? The contextual setting for that list is clearly one of formality and connotes B (as referred to in section 53) being specifically declared by A as having attained a particular set standard. If A does not have the power to set such a standard and make such a declaration then A cannot be a qualifications body within the meaning of section 53."

(2) Schedule 9 paragraph 2

1. Paragraph 2(3) of schedule 9 EqA provides for certain exemptions from liability in respect of qualifications for the purposes of employment for the purposes of an organised religion, where an (otherwise discriminatory) requirement is applied to comply with the doctrines of that religion.

1. The first stage thus requires a determination of the purpose of "the qualification" and then of "the employment". The test is an objective one and does not require that the court determine the purpose of the qualifications body or of the employer; simply that of the qualification and the employment. It is for that reason that it matters not whether the employer is actually a religious organisation; even if it is, there is no blanket exemption, it will still depend on the purpose of the employment; so, a non-religious body is not excluded from the exception if the employment is for the purposes of a religious organisation. That said, as a derogation from the principle of equal treatment, the provision should be construed narrowly; a point recognised in Parliamentary debates on the earlier regulations providing for a similarly (although not identically) worded exception, see as cited by Richards J in R (Amicus) v Secretary of State for Trade & Industry [2007] ICR 1176 QB, at paragraph 91:

"When drafting [the legislation] we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion.

… this is no 'blanket exception'. It is quite clear that [it] does not apply to all jobs in a particular type of organisation. On the contrary, employers must be prepared to justify any [relevant] requirement … on a case by case basis. The rule only applies to employment which is for the purposes of 'organised religion', not religious organisations. There is a clear distinction in meaning between the two. A religious organisation could be any organisation with an ethos based on religion or belief. However, employment for the purposes of an organised religion clearly means a job, such as a minister of religion, involving work for a church, synagogue or mosque." (per Lord Sainsbury of Turville, Minister of State, Hansard (HL Debates) 17 June 2003)

1. It is also an objective test that is to be applied at the second stage, when determining why the requirement has been applied, see per Richards J in Amicus, at paragraph 117:

"117. … the condition … that the employer must apply the requirement "so as to comply with the doctrines of the religion", is to be read not as a subjective test concerning the motivation of the employer, but as an objective test whereby it must be shown that employment of a person not meeting the requirement would be incompatible with the doctrines of the religion. …"

1. More generally, as Richards J went on to observe (paragraph 123, Amicus):

"123. The exception involves a legislative striking of the balance between competing rights. It was done deliberately in this way so as to reduce the issues that would have to be determined by courts or tribunals in such a sensitive field. …"

1. And, that it was inappropriate for courts or tribunals to seek to resolve issues of theological dispute was clear:

"37. In R (Williamson) v Secretary of State for Education and Employment [2003] QB 1300, … Arden LJ observed … that the court's function at the fact-finding stage was to decide what the claimants' beliefs were and whether they were genuinely held: "Religious texts often form the basis from which adherents develop specific beliefs. It is not the court's function to judge whether those beliefs are fairly based on the passages said to support them." … [that approach] is one that seems to me to have a great deal to commend it.

38. A more extreme case, relating as it did to a doctrinal assessment of the fitness of a rabbi, but again one that points to the appropriateness of judicial restraint in this general area is R v Chief Rabbi of the United Hebrew Congregation of Great Britain and the Commonwealth, Ex p Wachmann [1992] 1 WLR 1036. In that case Simon Brown J stated … that "the court would never be prepared to rule on questions of Jewish law" and that, in relation to the determination of whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office, the court "must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state"."

1. That desire to reduce the involvement of courts and tribunals in areas of particular religious sensitivity was made explicit during the Parliamentary debates referred in the Amicus judicial review, see again as cited at paragraph 91, as follows:

"… [W]e do not believe that [the legislation] should interfere with religious teachings or doctrine, nor do we believe it appropriate that doctrine should be the subject of litigation in the civil courts …

… [Government needs] to take a lead … [The legislation] resolves the problem of interfering with doctrine and teachings while remaining consistent with the [Equal Treatment] Directive. We believe [it] is lawful because it pursues a legitimate aim of preventing interference with a religion's doctrine and teaching and it does so proportionately because of its narrow application to a small number of jobs and the strict criteria which it lays down …"

1. Accepting the Secretary of State's position (essentially as expressed in the Parliamentary debates cited), Richards J agreed: the exception was indeed lawful.

1. Although Amicus was concerned with a challenge that focussed on compatibility with an EU Directive, the sensitivity of the issues raised has similarly been recognised in cases brought under the Convention. Thus, the ECHR in Fernández Martínez emphasised that:

"128. … but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate … Moreover, the principle of religious autonomy prevents the State from obliging a religious community to admit or exclude an individual or to entrust someone with a particular religious duty …"

1. That said, the autonomy afforded to religions is not absolute, as the ECHR continued:

"131. … a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render any interference with its members' rights to respect for their private or family life compatible with Article 8 of the Convention. In addition, the religious community in question must also show, in the light of the circumstances of the individual case, that the risk alleged is probable and substantial and that the impugned interference with the right to respect for private life does not go beyond what is necessary to eliminate that risk and does not serve any other purpose unrelated to the exercise of the religious community's autonomy. Neither should it affect the substance of the right to private and family life. The national courts must ensure that these conditions are satisfied, by conducting an in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests at stake …"

1. The task of the national court is thus to scrutinise that which is relied on by any particular religion as amounting to a threat to its autonomy; it is not to interfere with religious autonomy by itself attempting to determine the legitimacy of particular beliefs.

1. Where competing Convention rights are engaged, the role of the court is given a special importance (see paragraph 129 Fernández Martínez): thus, when the assertion of a right to religious autonomy interferes with Article 8 rights to respect for private or family life, the court is required to carry out an "in-depth examination" and "a thorough balancing exercise", to ensure the impugned interference does not go beyond that which is necessary. Allowing that States have a margin of appreciation in making the initial assessment as to where the balance should fall, it is for national courts to make the final evaluation of whether the interference is necessary in the circumstances of the particular case (Martínez paragraph 124).

(3) Harassment

1. Both parties place reliance on the guidance provided by the EAT (Underhill P, as he then was, presiding) in Richmond Pharmacology v Dhaliwal [2009] ICR 724 EAT, which held that the definition of "harassment" focuses on three elements: (1) unwanted conduct; (2) having the purpose or effect of either (i) violating the complainant's dignity, or (ii) creating an adverse environment for them; (3) related to the prohibited grounds. Recognising that there will often be considerable overlap between these elements, the EAT nevertheless opined that it would normally be a healthy discipline for ETs to address each factor separately and make factual findings on each. More specifically, in relation to "purpose or effect", the EAT offered the following guidance:

"14 … it is important to note the formal breakdown of "element (2)" into two alternative bases of liability - "purpose" and "effect". That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so). … in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent's purpose …

15 … [Further], although the proviso in subsection (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That … creates an objective standard. … The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a "subjective" element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. …

…

22 … Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused … it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. …"

1. That guidance was approved in Land Registry v Grant [2011] ICR 1390 CA, where, rejecting a criticism that Dhaliwal confused purpose and effect, Elias LJ held:

"13. … When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable."

1. The question of context and the creation of a hostile environment also arose for consideration before the EAT (Langstaff P presiding) in Weeks v Newham College UKEAT/ 0630/11, where it was observed:

"21. … it must be remembered that the word is "environment". An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff room concerned. We cannot say that the frequency of use of such words is irrelevant. …"

See to similar effect, paragraphs 98-99 GMB v Henderson UKEAT/0073/14 (Simler J).

(1) Qualifications body and relevant qualification

1. Although the first question is whether the Respondent's decision might be rendered unlawful by section 53 EqA because he was acting as a qualifications body, it is agreed that the real issue in this case is whether either the PTO or the EPML were relevant qualifications for the purposes of section 54: if they are "relevant qualifications", the Respondent has to be a "qualifications body" for those purposes.

1. Taking first the Claimant's appeal against the ET's rejection of his case in respect of the PTO, I note that (at least at this level) the Claimant accepts that "profession" requires some payment for services. He does not accept, however, that this means that the PTO was not a relevant qualification in this context; he contends that, on the facts, the PTO facilitated the obtaining of the EPML, which, in turn, facilitated, paid remuneration within the Trust. This submission is founded upon the Respondent's statement (responding to the Trust on 7 July 2014) that the grant of the EPML "would be inconsistent" given his earlier revocation of the Claimant's PTO. The straightforward answer to the appeal on this point is, however, that this is not what the ET found. The Respondent might have referred to consistency as between his decisions but that was not a concession that the grant of the EPML was dependent upon the holding of the PTO. Having heard from the Respondent, the ET found:

"45.4. … even if the Claimant had not [had] a PTO to be revoked, he would have refused to grant the EPML …"

concluding:

"46. … Yes the Respondent needed to be consistent in refusing the [EPML] … but the fact is that had there been no PTO, he would nevertheless still have refused to grant the authorisation."

1. The Claimant says the ET was there answering the wrong question; it should, rather, have asked what would have happened if his PTO had not been revoked? Had it done so, it would have been bound to conclude that - given the need for consistency - the PTO would have facilitated the grant of the EPML and, thus, the obtaining of the paid employment with the Trust. The difficulty with that submission is, however, that it fails to engage with the ET's key finding that the reason for the revocation of the PTO was the Respondent's view of the Claimant's loss of "good standing". Had the PTO not been revoked that would have been because the Respondent had not reached that conclusion. And, had he not reached that conclusion then, equally, he would have had no reason not to grant the EPML. The arguments become circular because they skate around the real issue: the decisions were consistent because they reflected the Respondent's view of the Claimant's standing; they were not interdependent, one did not facilitate the other.

1. Given my conclusion based on the ET's findings, I do not consider I need address the Respondent's further arguments on this point; indeed, as I take the view that cases under section 54(3) will be fact-dependent, I do not consider it would be helpful for me to do so.

1. I therefore turn to the Respondent's cross-appeal, against the finding that the EPML was a relevant qualification for section 54(3) purposes. In so doing, I follow the route sign-posted in Kulkarni: in the context of the interrelationship between the parties, was there anything the Respondent could do which amounted to granting to the Claimant an authorisation, qualification etc, connoting that he was specifically declared by the Respondent to have attained a particular standard?

1. There are certain situations which will obviously fall within the definition at section 54(3); such as qualifications - for example in the fields of medicine or law - granted upon the passing of an exam or test (see paragraph 28 Ali). The statutory language is, however, far broader than such examples would imply. It includes a "recognition" or an "approval", and it can apply to any "trade or profession". It is not suggested that section 53 could never apply in the context of a religious calling and yet it is readily apparent that the standards applied to those who are to exercise the Church's ministry are less likely to be open to a straightforward test of competence of immediate comprehension to the wider public. And that is why third parties (the Trust in this case) look to the Church to state whether an individual Priest is qualified, recognised or approved to carry out its ministry. In determining whether to grant that recognition, the test applied by the Respondent was one of "good standing", as that was to be understood within the Church of England. For a lay person that might seem to be matter of subjective assessment but, as the ET found (following the earlier ET decision in Ganga), within the Church of England it is essentially a term of art: the Claimant was judged not to be in "good standing" because he had acted:

"98. …in defiance of the Pastoral Guidance and thus in breach … of his oaths of canonical obedience … and doctrinal conformity …"

1. That was not simply the subjective view of the Respondent, reached capriciously or on a whim; it was a transparent assessment against the Pastoral Guidance and the Respondent's understanding of the doctrines of the Church, and there was no suggestion other than that he would have reached the same assessment, applying the same standards, on the same facts in any other case. This was not akin to the selection of a political candidate, as envisaged at paragraph 18 of Ahsan; that a different Bishop might have taken a different view does not mean the assessment took on the same subjective quality as a candidate's selection by a political party, any more than would be implied by the fact that different examiners, marking medical or legal exam papers might award different results.

1. I bear in mind that the grant of an EPML will be specific to a particular position and can allow that this will stand in contrast to many qualifications, which will be more general in their application. I do not, however, consider this to be fatal for the purposes of section 54(3). The role of Hospital Chaplain is plainly a vocation or calling such as to meet the broad definition of "profession". Granting a qualification for the purpose of a particular position which facilitates engagement in that profession meets the requirements of section 54(3). Furthermore, the fact that the Trust's interest was simply in the EPML is nothing to the point: it was content that the Respondent should judge whether that approval would be given. Its position was no different to the students who might have been more likely to utilise Ms Petty's services as a judo instructor because she held a national referee certificate: it was not her ability to referee that was the issue but the recognition afforded by the grant of the certificate (British Judo Association v Petty). Equally, from the Respondent's point of view, it was apparent that his assessment and decision was for the benefit of third parties, not for the purposes of the Church itself; this was not a Tattari case. The Respondent was asked to make a decision as to whether the Claimant was approved to carry out the ministry of the Church in an external role, employed by a third party. The Trust - as the employer - thus stood in the place of the wider public. The ET's decision in this regard goes somewhat further than it needed: seeing how the Claimant would be held out to the wider public when acting as Hospital Chaplain. As made clear in Watt v Ahsan, however, those who offer employment on the basis of a relevant qualification stand to be considered as "the public" (see paragraph 18 Ahsan): the key point is that the body granting the qualification is not simply applying a standard for its own purposes but is signifying that the individual meets a particular standard in circumstances where others will rely on that authorisation such that it will provide or facilitate access to a particular profession.

1. I therefore dismiss both the appeal against the ET's conclusion on the PTO as a relevant qualification and the cross-appeal against the conclusion on the EPML and, consequently, on the Respondent's status as a qualifications body in this regard.

(2) The application of paragraph 2 schedule 9 Equality Act 2010

1. In determining whether the Respondent could rely on the exception allowed by paragraph 2 of schedule 9, the first question for the ET was whether the qualification (here, the EPML) was for the purposes of employment for the purposes of an organised religion (paragraph 2(3)(a) read together with paragraph 2(1)(a)). There is a certain attraction to the Claimant's objection that this was employment within the NHS; not the Church: the Trust's appointment of a Hospital Chaplain was part of its holistic provision of health care; the Church of England played no part in setting the job description for the role and had no involvement in the selection of candidates. Why should the Church be permitted to create a discriminatory block to the appointment of the Claimant when the Trust had determined he was the best candidate for the role? The answer to that question lies, however, in the fact that the exception permitted by paragraph 2 of schedule 9 is not limited to employment within a religious organisation, just as it does not extend to all appointments within such an organisation. It is not the nature of the organisation that is in issue but the purpose of the employment. And here the ET's finding is clear: authorisation to be able to minister as a Church of England Priest was an essential requirement of the employment (paragraph 137); it was an integral part of what the Trust intended for the role (paragraph 144).

1. Moreover, that was the purpose of the qualification the Claimant sought. The EPML was the necessary licence for him, as a Church of England Priest, to carry out the Church's ministry throughout the Trust (see section 2 EPMM). The purpose of the EPML was thus for the purpose of employment for the purpose of an organised religion (here, the Church of England), albeit carried out whilst employed by a secular body. I find no error of law in the ET's approach to this issue, still less its conclusion.

1. The question then arises as to whether the ET erred in concluding that the Respondent had applied a requirement that engaged the compliance principle for the purpose of paragraph 2(5) schedule 9? Here, I agree with the Respondent, the "doctrines" of the religion must refer to the teachings or beliefs of that religion, not to what might more narrowly be understood by "doctrine" within a specific religious community such as the Church of England. Whilst a court will not simply accept an assertion as to the doctrines of a religion, it equally cannot be expected to enter into theological debate to determine those doctrines for itself. The ET was entitled to find that the doctrines - the teachings and beliefs - of the Church of England were as stated by Canon B30 and, with specific regard to same sex marriages permitted by the Act, as evidenced by the Pilling report and the Pastoral Guidance (ET paragraphs 171-187). That being so, it was equally entitled to accept that those doctrines were clear: marriage for the purposes of the Church of England was "between one man and one woman" (paragraph 188).

1. The ET had then to determine, however, whether the requirement applied by the Respondent (that the Claimant not be in a same sex marriage) was applied so as to comply with the doctrines thus identified. On this question, it is fair to say that the reasoning is hard to follow in places; the ET's conclusions (see paragraphs 234-236) draw upon both the apparent incompatibility of the Claimant's marriage with the doctrines of the Church and the conflict that thus arose with the Claimant's "canonical duty of doctrinal obedience". That duty arose from the Claimant's oath of canonical obedience and was owed to the Respondent, as Bishop of the Diocese, to obey him in matters of canon law (see Long v Bishop of Cape Town [1863] 15 English Reports 756 at 776). The Respondent's predecessor as Bishop had written to the Claimant on 17 March 2014, making clear his understanding of the Church's position in respect of same sex marriage and asking that the Claimant follow the House of Bishops' Pastoral Guidance. The Claimant had declined to do so. It was that combination of circumstances that the ET permissibly concluded led the Respondent to apply the requirement that the Claimant not be in a same sex marriage (ET paragraph 202).

1. I further agree with the Respondent that the fact that another Bishop might not have applied the same requirement does not take his decision outside sub-paragraphs 2(3) and (5). The exception allowed by paragraph 2 recognises that there may not be one consistent view within any religious community (see, for example, the "non-conflict principle" at paragraph 2(6)). It was not for the ET to prefer the reaction of one Bishop rather than another in terms of determining what might be required for compliance with the doctrines of the religion. It was concerned only with whether that was the reason for the Respondent's particular application of the requirement; a question of fact rather than a value judgment for the ET.

1. For all those reasons, I consider the Respondent was, as the ET concluded, entitled to the protection from liability afforded by paragraph 2 of schedule 9. I am therefore bound to dismiss the appeal on the direct discrimination complaint.

(3) Harassment

1. As for the harassment claim, the ET apparently accepted (per Dhaliwal) that the conduct in issue was unwanted (element 1); that, objectively speaking, it created the requisite adverse environment for the Claimant (element 2); and was related to his sexual orientation (element 3). It then returned to the second factor - the effect of the conduct - and reminded itself that "it should be reasonable that that consequence has occurred. That … creates an objective standard. …" (Dhaliwal paragraph 15). Finding that "the Claimant would never have been in this position had he not defied the doctrine of the Church" and it would be "an affront to justice" for the Respondent's actions to constitute harassment when otherwise exempt from liability by reason of schedule 9, the ET concluded the harassment claim was not made out.

1. It seems to me that there are a number of difficulties with that reasoning and I find it hard to see how the ET has carried out the task required of it (per Dhaliwal) in terms of addressing each factor separately and making the required findings of fact in respect of each.

1. First, as to the "unwanted conduct", I note that liability under section 53 EqA arises in relation to the conferment of a relevant qualification. Given the ET's earlier finding - that the PTO was not a relevant qualification - I am unable to understand how this was brought back into play when considering the harassment claim (see, for example, ET paragraphs 244 and 265(2)). It is possible that I have not properly understood the nuance of the Claimant's case in this regard (it was not specifically a point before me), but I ought, at least, to be able to see how the ET made the relevant determination in this respect; I cannot.

1. Second, when turning to the question of effect, I am unable to see that the ET has engaged with the question as to whether the conduct in issue - the decision not to grant the EPML and its communication - really did create an environment (see Weeks v Newham and GMB v Henderson). The Claimant says that can be inferred from the ET's findings that the refusal to grant the EPML obviously caused him stress, would have been humiliating and degrading for someone in his position and was a stunning blow. Those are obviously findings on which the Claimant can rely but I find it hard to see that the ET has shown how it found the requisite environment was thereby created. It seems to me there is merit in the cross-appeal in this respect: not that it would necessarily be impossible to find that a hostile environment had been created but that it is impossible to be sure that the ET engaged with the issue, still less understand its reasoning. Given, however, the view I have formed on the appeal under this heading, it is unnecessary for me to formally allow this ground of cross-appeal.

1. More than this, however, the ET's reasoning - at least on its face - seems inconsistent. When assessing whether the conduct in question had the proscribed effect (violation of the Claimant's dignity or the creation of an intimidating, hostile, degrading, humiliating or offensive environment), the ET correctly reminded itself that the Claimant's own perception was not determinative: it was also required to have regard to the other circumstances of the case and to whether it was reasonable for the conduct to have had the effect in question (section 26(4) EqA). As the EAT in Dhaliwal observed, that introduces an objective assessment. The ET's conclusion appears to state that it did not find - objectively speaking; given the particular circumstances of the case - it was reasonable for the conduct to have the proscribed effect (ET paragraph 270). Earlier on, however, the ET had answered the question whether the conduct had created the relevant environment as follows:

"… The answer objectively is that clearly the situation created an adverse environment for the Claimant in that he lost his PTO and did not get the promotion in relation to the refusal to grant him an EPML." (ET paragraph 265.2)

1. Putting to one side the failure to relate the reasoning to the ET's earlier findings (the PTO was not a "relevant qualification"; the EPML was for the purpose of the Trust chaplaincy post, not a "promotion" as such) and assuming that the reference to "adverse environment" is to a state of affairs that was intimidating, hostile, degrading, humiliating or offensive for the Claimant, it is unclear whether this "objective" assessment was intended to meet the requirements of section 26(4), although the ET's conclusion (paragraph 270) suggests it was not. Certainly the appeal and cross-appeal have both proceeded on that basis.

1. Notwithstanding my concerns as to these aspects of the ET's reasoning, the focus of the appeal is on a different aspect of the decision. Specifically, the Claimant objects (1) to the ET's apparent focus on his conduct (rather than that of the Respondent) - finding that it was his decision to defy the doctrine of the Church that gave rise to the unwanted conduct - and (2) to its conclusion that it would be an "affront to justice" if a decision which was exempt from liability under schedule 9 could nevertheless constitute harassment.

1. I understand the Claimant's objection to the way in which the ET has expressed itself in these respects. It is unhelpful to characterise his conduct - manifesting his love and commitment for his long-term partner through marriage - as an act of defiance against the doctrines of the Church. That may have been the consequence (as I have concluded the ET was entitled to find) but the ET's description can be read as suggesting that was the Claimant's intention, which fails to do justice to his position. Similarly, I can see why the Claimant has objected to the ET's explanation as to why it saw the application of schedule 9 to be relevant to the determination of the harassment claim. Certainly, the use of the expression "affront to justice" seems unnecessarily hyperbolic.

1. All that said, I consider that, beneath these infelicities of expression, the ET's reasoning discloses no error of law. As it made clear, it considered the context of the case to be highly relevant; it was entitled to do so (see Land Registry v Grant). This was not a case where the Respondent's decision was unexpected: both parties understood each other's positions; the Claimant was aware his marriage would be seen as in conflict with the teachings of the Church (even if he did not accept the characterisation of those teachings as doctrine) and he would thus be viewed as not in "good standing", as would be understood within the Church of England. Moreover, although the Respondent's decision would otherwise have amounted to an act of direct discrimination, Parliament had permitted a specific exemption from liability. If he were not permitted to make and communicate that decision without committing an act of unlawful harassment, that would create an inherent contradiction within the statute. That is not to say that the Respondent, acting as a qualifications body, could not commit an act of harassment in relation to the conferment of a relevant qualification but that would need something - some aggravating feature - more than simply the making and communication of a decision that fell within the schedule 9 exemption. Although poorly expressed, that is what I am satisfied the ET permissibly found. It adopted the correct approach, which allowed it to have regard to the context of the case. I therefore dismiss the appeal against the ET's decision on harassment.

1. For completeness, I turn to the Respondent's cross-appeal on the question whether the conduct "related to" the Claimant's sexual orientation. On this, I consider the ET was correct: "related to" is a broad term, it does not require a direct causal link. The ET was entitled to find that the Claimant's status as someone who had entered into a same sex marriage was inextricably related to his sexual orientation. Whilst directed at the Claimant's marital status, the Respondent's conduct thus related to the fact that he was a gay man. Had it been necessary, I would have dismissed the cross-appeal on this point.

1. For those reasons, I dismiss the appeal and cross-appeal. Given the importance of the legal questions involved and the novel issues arising, in particular, in respect of schedule 9, I would consider this matter suitable for permission to be given to appeal to the Court of Appeal, should such an application be made.

Notes

1 The ET's Reasons state that the Claimant was ordained as a Priest in 1989 (see paragraph 25) but I understand this is an error and I have therefore corrected the year in this Judgment.

2 In fact the licence in question was referred to as a General Preacher Licence ("GPL") but it appears that the ET treated this as equivalent to an EPMM licence (which is what would have been the appropriate form of licence); I am not aware that anything turns on this point and have thus adopted the same approach as the ET.

3 The ET refers to this as the Daily Mail; in any event, the article subsequently appeared on the "Mail Online".

4 For the Respondent it is observed that this is subject to the caveat that the Code of Conduct is issued by the UK Board of Healthcare Chaplaincy - a voluntary organisation in the sense that Chaplains can choose whether to be a member - and applies only to its members and others who choose to adopt it.