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Sharpe appeal fails as court denies employee status

08 May 2015


"Office-holder": the Revd Mark Sharpe, whose claim of unfair constructive dismissal against the Bishop of Worcester and Worcester Diocesan Board of Finance has foundered after he was ruled to be "neither an employee nor a worker"

"Office-holder": the Revd Mark Sharpe, whose claim of unfair constructive dismissal against the Bishop of Worcester and Worcester Diocesan Board of ...

THE Court of Appeal has rejected claims from the Unite union that beneficed clergy with freehold should be treated as employees or workers.

Three Appeal Court judges overturned the judgment of the Employment Appeal Tribunal and reinstated the original judgment of the Birmingham Employment Tribunal in the case of the Revd Mark Sharpe.

Mr Sharpe resigned from his post as Rector of Teme Valley South in 2009, claiming that he was bullied by his parishioners and hounded out of office. He lodged two separate claims against the Bishop of Worcester and Worcester Diocesan Board of Finance with the Birmingham Employment Tribunal, claiming unfair constructive dismissal. For this to be successful, he needed to show that he was an employee. Similarly, he needed to show that he had "worker" status to claim that he suffered detriments through whistle-blowing.

Thus, before he could argue the details of his case, he appeared before an employment tribunal in Birmingham to argue his status.

The Birmingham Employment Tribunal ruled that he was neither an employee nor a worker. With the assistance of the Unite union, the case was taken to the Employment Appeal Tribunal, which overturned the first judgment, saying that the Employment Tribunal had erred in law in reaching its decision.

But, on Thursday of last week, the Court of Appeal published its ruling that the original employment-tribunal judgment had been correct. "This case is not just about a man and his job," Lord Justice Lewison said. "It also raises questions about the interface between two parallel systems of justice (ecclesiastical and secular), and about the exercise of a property right to present an incumbent to a benefice (an advowson)."

The judge gave a detailed summary of the history of the law surrounding clergy appointments, going back as far as the Investit-ure Contest between the Popes and the Holy Roman Emperors in the 11th century; and continuing right up to the introduction of Common Tenure in the Ecclesiastical Offices (Terms of Service) Measure 2009.

"The duties imposed on Rev Sharpe derive principally from the Ecclesiastical Canons and Measures, and not from any private agreement between him and the bishop," he said. "His entitlement to stipend derives from statute and not any agreement between him and the bishop.

"The bishop has no power to dismiss Rev Sharpe; and is not even the initiator of disciplinary proceedings, which as I understand it is the sole method by which Rev Sharpe could have been deprived of his benefice against his will. His powers to declare a benefice vacant in cases of serious pastoral breakdown or incapacity are entirely dependent on the findings of an independent tribunal."

In their judgments, Lady Justice Arden and Lord Justice Davis agreed with Lord Justice Lewison's ruling.

LJ Arden said that the judgment applied only to clergy with the freehold benefice rather than those deployed under Common Tenure: "There may now be only a limited number of clergy to whom the same issues as arise on this appeal could apply in future."

Mr Sharpe's lawyers had argued that the "fragmentation" of the Church of England should not prevent clergy from enjoying employment rights. But LJ Arden said that "the term 'fragmentation' is often used to cover those situations where the 'employer's' functions are split in order to avoid responsibility under employment protection legislation, whereas in this case fragmentation occurs because it is a natural feature of the institutional structure of the Church of England."

LJ Davis said that "the subtext of the argument on behalf of Reverend Sharpe is that the position of an incumbent of a benefice should be looked at in a way which accords with modern notions and practices.

"Such individuals work hard, often in difficult circumstances, performing valuable functions within their parishes and receiving a stipend. It is, in effect, said that they ought now to be regarded as employees and ought to have the rights that others have under the employment legislation. I have quite a lot of sympathy for this approach. But I do not think that it can prevail in this case."

The diocese has welcomed the judgment, describing it as upholding "the freedom of clergy to be office-holders rather than employees".

"There has been considerable consultation with the clergy on this issue as well as discussions at General Synod, and clergy have consistently said that they don't wish to change their status as office-holders," the Bishop of Worcester, Dr John Inge, said.

"To become employees, clergy would lose the freedoms which are at the heart of the Church's ministry, and this is not something that they want to give up. It is regrettable that Unite fails to understand the context in which parish clergy exercise their ministry, whilst the Church seeks to uphold the freedoms enjoyed by its clergy."

Unite said that they were "deeply disappointed by this judgment, which looks back over 800 years to the Magna Carta and historical texts from when the Holy Roman Empire was formed to overturn the decision of an employment appeal tribunal in the present day. This judgement has serious ramifications for faith workers in accepting that aspects of the law of the land don't cover the Church. We will be considering the judgment fully, and deciding on our next steps over the coming days."

Lucy McLynn, a specialist in employment law at Bates, Wells & Braithwaite, said: "While the Court of Appeal's judgment in Sharpe is unsurprising on the facts of that case, in my opinion it offers nothing to suggest that the broader principle of the special status of ministers of religion as 'servants of God' alone is being revived. What we have seen in other recent cases, particularly on vicarious liability, is the courts increasingly finding that the Church is the employer of its minister."

'When the boss is God' - Angela Tilby

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