THE Court of Appeal has rejected claims from the Unite union
that beneficed clergy with freehold should be treated as employees
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
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
Thus, before he could argue the details of his case, he appeared
before an employment tribunal in Birmingham to argue his
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)
"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 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
"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
"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
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."
the boss is God' - Angela Tilby