Friday, 29 November 2013

Anglican Vicar May be an Employee

The employment status of a Church of England Minister has come before the Employment Appeals Tribunal in Sharpe v The Worcester Diocesan Board Of Finance [2013] UKEAT 0243_12_281.  The case follows on from the decision by the Supreme Court in President of the Methodist Conference v Preston [2013] UKSC 29 which decided that a Methodist Minister was not an employee.  (My Blog on that case is HERE)

Reverend Sharpe, the Claimant, is an ordained minister in the Church of England and from 2005-2009 was working as Rector in a Benefice in the Diocese of Worcester. (NB: Throughout the EAT judgment he is referred to as a 'Minister' rather than a 'Priest' so I adopt that title)

In two ET claims Rev Sharpe complained of detriment, as a result of having made public interest disclosures, and that subsequently of constructive unfair dismissal. At a pre-hearing review in February 2012 the ET Judge held that he was neither an employee of the Respondents nor a “worker” within the meaning of s.43K and s.230 of the Employment Rights Act 1996 and as such the ET had no jurisdiction to determine the claim.  When he appealed to the EAT the appeal was stayed pending the Supreme Court decision in 'Preston'.

Much of the EAT judgment deals with the formalities as to how the Rector was appointed and the authority exercised over him buy his Bishop and from that point of view is factually interesting though it does not make riveting reading.  The Claimant essentially submitted that he was under the direction and management of the Bishop whilst the Diocese described the Bishop as having a pastoral rather than a managerial role.  In relation to correspondence relied on by the Claimant as demonstrating management of him by the Bishop, during their dispute, the Judge found that the correspondence did demonstrate an attempt by the Bishop to manage the problems in his diocese.  However, it was clear that any solutions he could propose required the Claimant’s consent and the Bishop was not in a position to impose anything without that consent

On the evidence the ET  Judge found that the Bishop of Worcester was “not in the practice of issuing instructions”. This was because it was known both to him and to the priests of his Diocese that he had no right to issue instructions in the same way that an employer or a line manager would issue instructions, which a subordinate would be contractually obliged to obey. 

The EAT stated that after the Supreme Court decision in Preston the legal position for Employment claims by Ministers of Religion was that cases depend on their own particular facts. There is no longer any presumption that a minister and a church do not intend to enter into legal relations.  If the relationship between church and minister has many of the characteristics of a contract of employment, in terms of rights and obligations, these cannot be ignored simply because the minister’s duties are of a religious nature.  The precise nature of the legal relationship will depend on the facts having regard primarily to the manner in which the minister was engaged, and to the particular rules and practices of the Church which govern his or her service.

In this case the EAT accepted that what matters is whether there is “residual control”, rather than the frequency, or infrequency, with which that control may be exercised in practice.  The question was not how often the Bishop used the powers he had, but whether there were powers available to him to use.

In addition there was a significant factual difference to the Preston case in that once in post Rev Preston continued to receive her stipend even in the event of sickness or injury but in the case of Rev Sharpe by contrast if he was absent through sickness his stipend reduced to half after a period of 28 weeks and ceased altogether after 52 weeks meaning that that the stipend stopped when the job was not being done, so implying an employment relationship.  Another significant difference to Preston was that whilst a Methodist minister has no unilateral right to resign a rector in the Church of England can voluntarily resign his benefice.

These differences were not sufficiently analysed by the ET Judge, who in fairness was working on the, often contradictory, pre-Preston  legal cases.  The claim was remitted back to a fresh ET so as to allow a careful factual analysis of the rules and practices of the Church of England, the manner in which the Claimant was engaged and the particular arrangements made with him, as revealed by all the relevant documentation in order to determine whether, properly analysed, they were characteristic of a contract and, if so, whether it was a contract of employment.

The EAT also rejected the idea that the Claimant’s relationship with the Bishop was defined exclusively by ecclesiastical law even allowing for the fact that the Canon Law of the Church of England is, uniquely, also part of the Law of England.

The case seems destined to be one that "runs and runs" and will probably be back in the EAT in due course whatever the ET eventually decides.

One interesting comment by the Judge in para 13 of the judgment is worth quoting

Despite its central position in society as the established Church, the Church of England has no legal personality.  It can neither sue nor be sued.  The piecemeal approach of legislation over the years has resulted in the title “Church of England”, denoting an amalgam of an infinite number of bodies with no clear picture as to how the various parts interact with each other.  Ultimate authority lies with the Church’s Parliament, the General Synod, subject to the approval of the Westminster Parliament.

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