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.

Thursday, 28 November 2013

B&B Owners and Sexual Orientation - The Final Chapter

The Supreme Court has issued its decision in the case of Bull v Hall [2013] UKSC 73 which involves a couple, Mr & Mrs Bull, who owned a B&B in Cornwall and who refused to provide a double bedded room to a Gay couple who were in a Civil Partnership.  They justified this on the basis that they only provided double bedded rooms to Heterosexual Married couples.  They were then successfully sued for breach of the Sexual Orientation Regulations 2007, which are now incorporated in the Equality Act 2010

The Bulls had originally lost their case in the Court of Appeal Bull v Hall [2012] EWCA Civ 83 which I blogged about HERE where they had been found to have engaged in Direct as Opposed to Indirect discrimination.  In the Supreme Court 3 all the Judges agreed that the Bulls had engaged in unlawful Discrimination but 3 held it was Direct Discrimination and 2 held it was Indirect Discrimination.   The decision by the Supreme Court also has the effect of overriding the decision of the Court of Appeal in Black v Wilkinson [2013] EWCA Civ 820 where a similar situation to that of the Bulls was considered by the Court of Appeal to be Indirect Discrimination.  The fact that so many eminent Judges can disagree on so fundamental a legal issue hardly inspires confidence in the legal drafting behind the Equality Act 2010

That said the decision by the Supreme Court was predictable and follows the logic of similar decisions in Canada  Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2),2012 BCHRT 247 and in the USA  Elane Photography v Vanessa Willock New Mexico Supreme Court August 22, 2013 and the decision re Lillian Ladelle in the European Court of Human Rights all of which I have previously blogged about.  Article 9 of the European Convention of Human Rights was here, as so often before, shown to be a toothless Human Right 

The summation of the present legal situation and the philosophy behind it was put by Lady Hale who did the lead judgment in the case

52.Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.

53. Heterosexuals have known this about themselves and been able to fulfil themselves in this way throughout history. Homosexuals have also known this about themselves but were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised. Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.

54. There is no question of (as Rafferty LJ put it) replacing “legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)” (para 56). If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.

The point I would ask is what sort of legal system or society needs to punish a couple who run a small B&B merely because they disagree with  the, now overwhelming, consensus ?  Why on earth can society not accommodate them, what ever happened to the idea of human freedom ?

Also as regards the fatuous comparison Lady Hale made in para 54 surely the point would be why the Preddy and Hall were denying the room to the Bulls ?  Lady Hale simply did not try to address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point

Sunday, 10 November 2013

The Coronation Oath - A Legal Challenge ??!!

It has been reported that the National Secular Society is instructing Lawyers to consider the possibility of making a legal challenge to the Coronation Oath in particular that part where the Monarch promises to maintain the Protestant Religion

 Archbishop. Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?

Queen. All this I promise to do.

The NSS apparently wants to ensure that this part of the Oath is changed before the next Coronation.  Now leaving aside the fact that talking about the wording of the Oath for the next Coronation whilst the present Queen is alive and in good health is in exceedingly bad taste the idea that there could be a legal challenge to the Coronation Oath using the Human Rights Act 1998 is simply legal fairyland. 

To begin with neither the NSS nor anyone in it has legal standing to bring a claim since s7 of the Act says (my emphasis)

 7(1) (1)    A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may
(a)    bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b)    rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act

and therefore the only person who could claim to be a "victim" of the wording of the Coronation Oath is Prince Charles who will, in all probability, be taking the Oath at some unspecified time in the future. The simple legal, as well as political question is, 
"If Prince Charles does not object to taking the Oath what right has anyone else got to object on his behalf ?" 

The fact that the (miniscule) membership of the NSS may object to the wording of the Oath is irrelevant. Lord Diplock noted in R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617   the need
"to prevent the time of the court being wasted by busybodies with misguided or trivial complaints" 

After all if the NSS could legally object to the wording of the Coronation Oath because they found it "objectionable" then by the same logic any group which objected the existance of the Monarchy itself could equally object to a Coronation itself on the basis that they found that "objectionable"

Finally as was noted by the Canadian Courts in O’Donohue v. Canada, 2003 CanLII 41404 (ON SC) and 2005 CanLII 6369 (ON SC)  which dealt with the position of Queen Elizabeth II as Queen of Canada the Monarchy of the United Kingdom is a Monarchy that is shared with Fifteen other Commonwealth Realms and any changes to the Coronation Oath or the rules relating to eligibility to the Throne cannot be imposed unilaterally by the Government, Parliaments or Courts of any of individual realm but have to be agreed by all the Realms.  In short any attempted legal challenge to the Coronation Oath in the Courts of the UK would be an attempt to interfere in the Government and Constitutions of fifteen other Nations

The NSS will I am sure be aware that the entire story is nonsense and no legal challenge would ever get off the ground however they have got their publicity which is I suspect all they ever really wanted

My other Blogs re the Monarchy

A Catholic Monarch ? The Act of Settlement 1701

Myths about Catholics and the Monarchy