A 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
The Revd Mark Sharpe says 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,
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. 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
Judgment on Mr Sharpe's appeal was finally handed down on
Thursday of last week, more than a year after the appeal
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
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
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
Mrs Justice Cox overturned the decision of the Birmingham
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 clerics should be treated as
employees, with full access to employment rights and employment
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
afterwards. "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."
Rachael Maskell from Unite called for a "constructive and open
dialogue" with the C of E. The diocese of Worcester has not
commented on the judgment.