In Gould v Trustees of St John’s Downshire Hill, the EAT has overturned an employment tribunal’s preliminary decision and allowed a minister’s discrimination claim to proceed. The facts of the case are interesting.

The Reverend Gould had worked as a minister at St John’s since 1995. In 2015, he and his wife went through difficulties in their marriage and a separation became likely. The trustees of the church expressed their concern that these marriage difficulties and a potential separation were incompatible with the teachings of the church and put pressure on Rev Gould to take a sabbatical in order to focus on saving his marriage. He unwillingly commenced a sabbatical in March 2016. In August 2016, Rev Gould was dismissed. The trustees cited a breakdown in trust and confidence as the reason for the dismissal.

Rev Gould brought a claim in an employment tribunal for direct discrimination on the ground of his marriage. At a preliminary hearing, the employment tribunal struck out the claim as having no reasonable prospects of success. The employment judge decided that the reason for the dismissal was Rev Gould’s marriage difficulties and not his marriage itself.

The EAT disagreed. Mrs Justice Simler noted that, in discrimination law, there is no need for the protected characteristic to be the only reason or the main reason for the less favourable treatment. She stated: “If the fact that a claimant is married plays an operative part in the reason or reasons the employer has for treating that person less favourably, that is sufficient to engage the protection.” She held that it was the claimant’s case that “the difficulties in his marriage were…only significant to the Respondent because there was a marriage in which there could be difficulties” and noted that the importance placed on marriage by the Respondent led to Rev Gould’s marriage difficulties being problematic for the Respondent. She identified that the claimant’s case was that discrimination “flowed from the composite reason of his being married and having marital difficulties”. Mrs Justice Simler held that the correct comparator in this case was someone in the same circumstances as the claimant who was not married. That is, a minister of the same church who was having relationship difficulties with a long term partner to whom he was not married. She dismissed the Respondent’s argument that allowing the appeal would mean a minister who committed adultery would be protected from dismissal under the Equality Act.

Mrs Justice Simler commented that the comparator in that case would be a minister who was sexually unfaithful to his common law partner. If a married person in that circumstance would have been treated less favourably than an unmarried person, the legislation would apply to protect the married person. – 6 –

Ministers of the Church of England are not usually employees of the Church. However, the Equality Act 2010 applies to a wider group of employees, workers and self-employed people who are required to provide a personal service and this includes non-employed ministers. This is a fascinating case which is a reminder that discrimination may occur even though the protected characteristic is not the only or main reason for the treatment. What Mrs Justice Simler terms “composite” reasons for less favourable treatment which entail a protected characteristic may also constitute discrimination.