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Mark Sharpe returns for more legal proceedings

13 February 2015

iSTOCK

More time: the Court of Appeal sits at the Royal Courts of Justice, in central London 

More time: the Court of Appeal sits at the Royal Courts of Justice, in central London 

THE employment status of clergy was considered by three Court of Appeal judges this week, as a former Worcestershire Rector, the Revd Mark Sharpe, returned to the courts for the latest stage of protracted legal proceedings.

Mr Sharpe states that he was bullied and hounded out of his position as Rector of Teme Valley South in 2009. He lodged two separate cases in the Birmingham Employment Tribunal (ET) claiming unfair constructive dismissal, for which he needs to show he was an "employee"; and also that he suffered detriments through whistle-blowing, for which he needs to show he was a "worker".

The Church of England is contesting the ET's jurisdiction, arguing that beneficed clergy are neither employees nor workers but freehold office holders. In November 2011, the Birmingham ET concurred with the C of E's argument and threw out Mr Sharpe's case. But this was overturned two years later by the Employment Appeal Tribunal (EAT), which overturned the ET's decision and sent it back for a fresh hearing.

Instead, the C of E took the case to the Court of Appeal seeking to reinstate the ET judgment.

Central to the court's consideration was the role of the patrons of the parish, the nature of the Worcester diocesan handbook, known as the Bishop's Papers, and the payment of the stipend.

Thomas Linden QC, acting for the C of E, said that the letter offering the Mr Sharpe the position and his reply accepting it was not from the bishop but from the patron to the parish, "an ancient office to which the office holder has a proprietorial right".

He said that, unless the Bishop rejected the patron's nomination, under limited reasons which could be tested by the secular courts, the Bishop had an obligation in canon law to institute him to the benefice.

But John Bowers QC, acting for Mr Sharpe, argued that, "although the language derides from advowsons and property rights, conceptually it is no different from that of an employment agency."

Asked by Lord Justice Davis whether a priest would have a claim if a patron withdrew an offer after acceptance, Mr Bowers said that the priest would have a claim for breach of contract and would be able to claim for "reasonable notice".

But Lord Justice Lewison demurred. "The practice of presentation to a benefice is to a freehold. There is no question of giving notice."

Mr Linden said that the original ET described the Bishop's Papers as "a series of ad-hoc policy papers", and their introduction describes them as "useful information for all parish officials explaining how things are done in the diocese." They could not, he said, be considered to be terms and conditions of a contract.

But Mr Bowers argued that they included references to a six-yearly review, continuing ministerial education, residential courses every three years, and sabbaticals. "There is nothing in the canons or ordinal of the Church of England, or elsewhere in ecclesiastical law, to provide for sabbaticals, and there is no way to enforce it if there was not a contract," he said.

He told the court that there was "the expectation that they will be provided, shortly after the appointment they were provided, and . . . this particular arrangement could not be carried out without something like the Bishop's Papers filling in the gaps."

In his reply, Mr Linden argued that the Bishop's Papers were "a point of reference, but not a contracting document". He highlighted the text of some of the sections mentioned by Mr Bowers, including the section on holidays, which stated that: "The following guidelines suggest what the provision should be." He said that text which spoke of "guidelines" and "suggestions" could not be considered to be contractual.

"As far as those provisions are concerned, they are essentially describing, by way of information, payments that various bodies will make. They are not saying 'I, the bishop, will make them."

Criticism was made of the evidence given at the original ET by David McClean, Emeritus Professor of Law at the University of Sheffield, who chaired the C of E review into clergy terms of service. Mr Bowers argued that his evidence amounted to expert evidence on English law, which was not permitted.

In his evidence in November 2011, Professor McClean had said that the Oath of Canonical Obedience - which Mr Sharpe was arguing was proof of "residual control" by the bishop - was "largely symbolic", and had "little, if any real effect in practice". Mr Bowers argued that "he should not have been allowed to give evidence on English law. . . The court should not have allowed an expert, no matter how distinguished, to give evidence like that."

The judges disagreed: Lord Justice Lewison said that it appeared to be "no different to somebody saying that the police do not prosecute somebody who drives at 73 mph on a motorway." And Lady Justice Arden said: "All he was doing was explaining what the bishop could do if the oath was breached."

Mr Linden said that "the Oath of Canonical Obedience is no more than an oath to obey canonical law," and that it was not an oath to follow instructions from the bishop.

He has asked that the judges overturn the judgment of the EAT and to reinstate the judgment of the Birmingham Employment Tribunal. Mr Bowers, for Mr Sharpe, has asked instead that the judges remit the case back to the EAT for a decision.

The eventual outcome of the case will apply to approximately 1939 incumbents still with freehold. All new appointments are on the basis of the new common tenure system.

The hearing is continuing.

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