Judge must decide on priests’ employment status

by
01 December 2011

by Gavin Drake

A FORMER rector, the Revd Mark Sharpe, will have to wait up to three months before he finds out whether he can bring a case of constructive dismissal against the Bishop and diocese of Worcester (News, 25 November).

The chairman of an employment tribunal, A. J. McCarry, told Mr Sharpe at the end of a five-day preliminary hearing in Birmingham last week that he was “constrained to get decisions out within three months, and it may be close to that.

“I am no closer to reaching a decision than I was at ten o’clock on Monday morning. That is not to say you’ve laboured in vain.”

If the judge decides that Mr Sharpe was an employee, he will be entitled to bring his claim to a full employment-tribunal hearing, which is estimated to take 20 days. The diocese is arguing that he was a freehold office-holder.

In his closing submission, Geoffrey Tattersall QC, for the Bishop and the diocese, told the judge that he was dealing with a test case, and that whatever he decided “for this freehold incumbent in the diocese of Worcester would decide the status of all freehold incumbents in the Church of England”.

He said that the Church of England’s case rested on the lack of an expressed contract between the parties and the very high level of autonomy exercised by incumbents — as governed by Measures that had the same force of law as Acts of Parliament.

The judge replied that he had not been aware of the strength of the Measures at the beginning of this case.

John Benson QC, for Mr Sharpe, told the judge that “there has been a great deal of information that, at first hand, is very difficult to understand. A lot of the material is arcane and bedded in history. The Church of England is an organisation that doesn’t fall comfortably in the role of an employer; nor does an incumbent fall into the role of an employee.”

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He said that the evidence heard during the hearing and the past case law meant that he was “ploughing a lonely furrow in arguing that Mr Sharpe is an employee, but that won’t deter me”.

He said that an employment contract was implied by custom and practice: “The claimant’s expectation when he applied for, accepted the offer of appointment and took his oath of canonical obedience is that he would receive a stipend. The respondents’ expectation is that they would pay a stipend.

“The old dichotomy of office-holder and employee is old hat. It is recognised that relationships today do not give rise to such clear division.”

The judge told Mr Benson that the end position of his argument was that “every office-holder who agrees to enter into an office in return for remuneration has entered into a contract.” He said that this would affect other office-holders, including police officers and judges, who are not currently understood to have a contract of employment.

Mr Benson also argued that, contrary to the Church of England’s case, a bishop maintained an ele­ment of control and moral authority over his priests: “The oath of canon­ical obedience meant to Mr Sharpe that, when the Archdeacon or Bishop said something had to be done, it had to be done, and there would be consequences if it was not done.”

The judge said that one of the difficulties in the case would be to identify, if Mr Sharpe was an employee, who his employer was.

Mr Benson told the judge that various elements of a contract could be performed by different limbs of the same organisation, with the Diocesan Board of Finance as paymaster and the Bishop providing the supervision and control.

Judgment was reserved.

THE Revd Mark Sharpe was ap­pointed to his post in January 2005, writes Gavin Drake. In April 2006, he went on sick leave, which continued until he resigned from his post in December 2009.

He has two claims pending: the first was brought while he was still in post as Rector, and alleges that the Bishop and dio­cese failed to protect him from detri­­­ments as a whistle-blower. The sec­ond is for constructive dismissal, and was brought after his resigna­tion.

The diocese had originally con­ceded that Mr Sharpe was a worker, and was content to fight the claim on its merits. This concession re­sulted in a claim by the faith-workers section of the Unite union of “the big­gest breakthrough in improved em­ployment conditions for minis­ters in the Church of England since the Reformation”. This was although the diocese’s concession was “with­out prejudice”, and appl­ied only to Mr Sharpe “for the purposes of this claim”.

Since Mr Sharpe’s second claim, the diocese has sought to withdraw that concession, and one of the deci­sions of the employment tribunal is whether to give permission for it to do so.

To bring a claim for unfair dis­mis­sal you need to be an employee, defined in law as a person who works under a contract of employ­ment.

This should make it easy for the tribunal to decide the case: if Mr Sharpe presents a written employ­ment contract, he is an employee; if he can’t, then he isn’t. The law isn’t that simple, however, as it recog­nises that some employees do not have written employment contracts.

The law lays out a number of things that have to be proved if a person is to show that he or she is an em­ployee:

• a contract with the employer (written or oral, express or implied);

• the individual has to carry out the work personally;

• there has to be “mutuality of obligation”;

• the employer has to have “con­trol” over the work of the employee.

Past cases in England have always been decided by stating clearly that Church of England priests are not employees. In 1995, the Revd Kit Chalcraft was dismissed by the Bishop of Norwich after announ­cing his intention to marry for the third time. An employment tribunal refused to hear his case.

In 1998, the Revd Dr Alexander Coker took Southwark Diocese to an employ­ment tribunal after failing to obtain a post after his curacy. The tribunal originally found in his favour. The tribunal judge said that the spiritual nature of his work did not preclude an employment contract. But this was overturned by the Employment Appeal Tribunal, whose decision was later upheld by the Court of Appeal.

Under other circumstances, this would be the end of Mr Sharpe’s claim. An employment tribunal cannot overrule the Employ­ment Appeal Tribunal or the Appeal Court, and John Benson QC accepted that he was “ploughing a lonely furrow”.

But their hope comes from the case of the Revd Helen Percy, who was forced to resign from her post with the Church of Scotland amid allegations that she had committed adultery. She brought a sex- discrimina­tion case, claiming that male colleagues had been allowed to continue in ministry when faced with similar allegations.

Ms Percy was not an incumbent but an associate minister, a key difference from the position of Mr Sharpe. The House of Lords, by a four-to-one majority decision, allowed Ms Percy to take her claim to an employment tribunal.

It did not create a new precedent that lower courts must automatic­ally follow; but it did recognise the different nature of appointments of different types of post in different types of Churches, and it overruled the previous presumption that there was no intention to create legal contractual relations for ministers of religion.

It said that each employment tri­bunal should conduct a fact-finding exercise to determine whether a contract existed, and, if it did, whether that contract was a contract for employ­ment.

Geoffrey Tattersall QC argued that there was no space for a con­tract between the parties, because all the terms and conditions of the office were laid down in statute in the form of Canons and Measures.

He said that there was no obliga­tion for any incumbent to carry out any work or duties personally; and that he or she could delegate the responsibili­ties of office to other people. He argued, too, that there was no “mutuality of obligation”; and that, while diocesan boards of finance had a power to pay stipends, they had no legal obligation to do so; and that, until the introduction of com­mon tenure, an incumbent had no legal remedy if a board of finance stopped paying a stipend.

He also said that nobody had the power to control the work of a freehold incumbent. He spoke of bishops “pulling their hair out” in desperation that they could not intervene in parishes when things were going wrong.

This picture was disputed by Mr Benson, who argued that the oath of canonical obedience meant that a priest was duty-bound to do what­ever a bishop told him or her to do; and that “consequences would follow”, including action under the Clergy Discipline Measure, for any priest who ignored the bishop’s directions.

THE Revd Mark Sharpe was ap­pointed to his post in January 2005, writes Gavin Drake. In April 2006, he went on sick leave, which continued until he resigned from his post in December 2009.

He has two claims pending: the first was brought while he was still in post as Rector, and alleges that the Bishop and dio­cese failed to protect him from detri­­­ments as a whistle-blower. The sec­ond is for constructive dismissal, and was brought after his resigna­tion.

The diocese had originally con­ceded that Mr Sharpe was a worker, and was content to fight the claim on its merits. This concession re­sulted in a claim by the faith-workers section of the Unite union of “the big­gest breakthrough in improved em­ployment conditions for minis­ters in the Church of England since the Reformation”. This was although the diocese’s concession was “with­out prejudice”, and appl­ied only to Mr Sharpe “for the purposes of this claim”.

Since Mr Sharpe’s second claim, the diocese has sought to withdraw that concession, and one of the deci­sions of the employment tribunal is whether to give permission for it to do so.

To bring a claim for unfair dis­mis­sal you need to be an employee, defined in law as a person who works under a contract of employ­ment.

This should make it easy for the tribunal to decide the case: if Mr Sharpe presents a written employ­ment contract, he is an employee; if he can’t, then he isn’t. The law isn’t that simple, however, as it recog­nises that some employees do not have written employment contracts.

The law lays out a number of things that have to be proved if a person is to show that he or she is an em­ployee:

• a contract with the employer (written or oral, express or implied);

• the individual has to carry out the work personally;

• there has to be “mutuality of obligation”;

• the employer has to have “con­trol” over the work of the employee.

Past cases in England have always been decided by stating clearly that Church of England priests are not employees. In 1995, the Revd Kit Chalcraft was dismissed by the Bishop of Norwich after announ­cing his intention to marry for the third time. An employment tribunal refused to hear his case.

In 1998, the Revd Dr Alexander Coker took Southwark Diocese to an employ­ment tribunal after failing to obtain a post after his curacy. The tribunal originally found in his favour. The tribunal judge said that the spiritual nature of his work did not preclude an employment contract. But this was overturned by the Employment Appeal Tribunal, whose decision was later upheld by the Court of Appeal.

Under other circumstances, this would be the end of Mr Sharpe’s claim. An employment tribunal cannot overrule the Employ­ment Appeal Tribunal or the Appeal Court, and John Benson QC accepted that he was “ploughing a lonely furrow”.

But their hope comes from the case of the Revd Helen Percy, who was forced to resign from her post with the Church of Scotland amid allegations that she had committed adultery. She brought a sex- discrimina­tion case, claiming that male colleagues had been allowed to continue in ministry when faced with similar allegations.

Ms Percy was not an incumbent but an associate minister, a key difference from the position of Mr Sharpe. The House of Lords, by a four-to-one majority decision, allowed Ms Percy to take her claim to an employment tribunal.

It did not create a new precedent that lower courts must automatic­ally follow; but it did recognise the different nature of appointments of different types of post in different types of Churches, and it overruled the previous presumption that there was no intention to create legal contractual relations for ministers of religion.

It said that each employment tri­bunal should conduct a fact-finding exercise to determine whether a contract existed, and, if it did, whether that contract was a contract for employ­ment.

Geoffrey Tattersall QC argued that there was no space for a con­tract between the parties, because all the terms and conditions of the office were laid down in statute in the form of Canons and Measures.

He said that there was no obliga­tion for any incumbent to carry out any work or duties personally; and that he or she could delegate the responsibili­ties of office to other people. He argued, too, that there was no “mutuality of obligation”; and that, while diocesan boards of finance had a power to pay stipends, they had no legal obligation to do so; and that, until the introduction of com­mon tenure, an incumbent had no legal remedy if a board of finance stopped paying a stipend.

He also said that nobody had the power to control the work of a freehold incumbent. He spoke of bishops “pulling their hair out” in desperation that they could not intervene in parishes when things were going wrong.

This picture was disputed by Mr Benson, who argued that the oath of canonical obedience meant that a priest was duty-bound to do what­ever a bishop told him or her to do; and that “consequences would follow”, including action under the Clergy Discipline Measure, for any priest who ignored the bishop’s directions.

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