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
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
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
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
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.