Discrimination and the Church of England: To What Extent does the Equality Act 2010 Adequately Protect Church of England Clergy?

Abstract

The extent to which members of the clergy are considered ‘employees’ for the purposes of secular employment and equality legislation has been the subject of much discussion, but essentially remains a fact sensitive question. The Equality Act 2010 (‘the 2010 Act’) seeks to prevent discrimination on the basis of nine ‘protected characteristics’. While recognizing that the application of the 2010 Act to the variety of clergy offices is ‘not straightforward’, the Church of England (‘the Church’) has opined that an equitable approach to clergy appointments is to proceed as if they were subject to the provisions of the 2010 Act. What follows is in`tended to be a thorough review of the eligibility criteria for clergy appointment in the Church to assess their compatibility with the requirements of the 2010 Act. In addition, particular consideration will be given to Schedule 9(2) to the 2010 Act which makes specific provision relating to religious requirements concerning the protected characteristics of sex, sexual orientation, and marriage and civil partnership. In short, where the employment is for the purposes of an organized religion, such as the Church, requirements which relate to these protected characteristics will not constitute discrimination where they engage the ‘compliance or non-conflict principle’. What these principles mean and how they might operate in practice is discussed below, taking into account the likely canonical and theological justifications for discriminating against certain individuals. Whether the law strikes the right balance between, on the one hand protecting clergy and, on the other, providing the Church with the autonomy to act in accordance with its established doctrine, will be explored in the final analysis.