A long-running dispute between the Revd Mark Sharpe and the
Bishop and diocese of Worcester must restart its long journey
through the courts after a ruling that an employment tribunal had
erred in deciding that clerics were office-holders. The judge
declined, however, to rule on whether they should be awarded
employee status.
The Revd Mark Sharpe claims that the bishop and the diocese
failed to protect him from parishioners who poisoned his dog and
slashed his car tyres, and other "detriments" he suffered as a
result of "public-interest disclosures" he made about them. He
resigned his post in September 2009, and lodged two claims with the
Employment Tribunal in Birmingham.
The Bishop and diocese argued that Mr Sharpe was an
office-holder, rather than an employee or a worker as defined in
employment law, and was therefore was unable to bring a claim to an
employment tribunal. At a preliminary hearing in November 2011,
Employment Judge McCarry agreed, saying that the conditions
required under an employment contract were missing from the
relationship between an incumbent and his bishop or diocese.
Mr Sharpe, supported by the Unite union, appealed to the
Employment Appeal Tribunal against the decision. Legal
arguments were rehearsed during a two-day hearing in November
2012 before Mrs Justice Cox. That case was stayed, twice, after the
hearing, to allow the parties to make representations about two
cases decided by the UK Supreme Court, including that of the
President of the Methodist Conference v Preston, which ruled that a
minister was not an employee of the Methodist Church (News, 17 May).
Judgment on Mr Sharpe's appeal was finally handed down on
Thursday, more than a year after the appeal hearing.
Mrs Justice Cox ruled that the judge in the Birmingham
Employment Tribunal had "failed to apply binding authority" and did
not "carry out the full analysis" set down by the Supreme
Court.
She said that "the conclusion that [Mr Sharpe's] relationship
with the Bishop was defined exclusively by ecclesiastical law led
the judge into legal error in a number of other respects in his
analysis as to the existence of a contract."
One of these was the area of "control and discipline", one of
the tests for employment status. The judge referred to Canon
C18(7), which provides that "every bishop has the power to correct
and punish the disobedient or criminal within his diocese"; and to
section 1 of the Clergy Discipline Measure (CDM), which says that
anybody carrying out functions under the CDM will have "due regard
to the role . . . of the bishop or archbishop, who, by virtue of
his office and consecration, is required to administer
discipline".
The employment tribunal had heard that such power was largely
symbolic, and that a bishop had very little power to control or
discipline priests. But Mrs Justice Cox ruled: "As a matter of law,
how often the bishop may use these powers in practice, and how many
complaints are referred to the Bishop's Disciplinary Tribunal each
year, are not determinative of the legal relationship with the
claimant, and whether that relationship is contractual.
"What matters is the existence of residuary powers of control
and discipline, not the extent or frequency of their application in
practice."
Mrs Justice Cox overturned the decision of the Birmingham
Employment Tribunal, but did not rule on the key question of Mr
Sharpe's employment status. Instead she remitted the case back to
the tribunal "for a fresh hearing in accordance with the legal
principles" set out in her 74-page judgment.
Unite has long argued that clergy should be treated as employees
with full access to employment rights and employment tribunals.
Under the Ecclesiastical Offices (Terms of Service) Measure 2009
and the associated Regulations, clergy are now appointed to posts
under "common tenure" rather than the older system of the freehold.
The Measure grants clergy certain employment rights, including the
right to have cases for unfair dismissal heard by employment
tribunals, but states: "Nothing in this Measure shall be taken as
creating a relationship of employer and employee between an office
holder and any other person or body."
Given the importance that both Unite and the C of E place on the
employment status of clergy, the matter is expected at some point
to reach the higher courts, whatever decision the employment
tribunal reaches when it considers the matter afresh next year. The
substance of Mr Sharpe's complaint against the diocese will not be
considered until his employment status is resolved.
"This decision has come as an immense relief," Mr Sharpe said in
a statement. "I never intended to set out on this journey, but I
was forced down this route in order to seek recompense for my
family and I. I feel vindicated by the stand that Unite has taken
on my behalf and hope to move to a swift resolution of the
outstanding issues with the Church, so that I can move forward to
the next chapter of my life."
Unite's Rachael Maskell called for a "constructive and open
dialogue" with the C of E "to ensure that Mark is properly
compensated" and on the Church's "employment practices".
She said: "Our door is open for discussions to bring the
employment rights of the clergy into the modern age, as they have
been unchanged since the Church of England was set up by Henry VIII
in the 1530s."
The diocese of Worcester has not commented on the judgment.