THE Archbishop of York has said that it might be time “possibly [to] ask the question whether clergy should become employees” (News 10 January). Last month, the Bishop of Birkenhead, the Rt Revd Julie Conalty, who is the deputy lead bishop for safeguarding, told the Sky News programme The UK Tonight that she “can see issues around lack of accountability” in the Church. “So the way in which clergy are appointed as office-holders, not employees, and the laws and rules that we have around imposing clergy discipline, are not really fit for purpose.”
Both statements referred to clergy discipline in general, but it was obvious that the context was current concerns over perceived failures by the Church to deal adequately with safeguarding.
The question whether clergy should become employees was also raised by the Bishop of Blackburn, the Rt Revd Philip North, last year, after the case of Canon Andrew Hindley. The latter had been paid a six-figure sum by the diocese after challenging a move to force him to retire (News, 23 August, 16 August 2024). Bishop North suggested that clergy should become employees of the diocesan board of finance, “with all the transparency and mutual accountability that offers”.
There are three linked issues: would employee status assist the Church’s safeguarding? would it be appropriate in other ways? and, finally, in a way that applied more in this context than in the secular world, would it actually be right to do so?
TURNING to the first question, the Clergy Discipline Measure (2003) (CDM) originally made no reference to a safeguarding failure in its definition of misconduct; but, after the passage of the Safeguarding and Clergy Discipline Measure 2016, a safeguarding failure became an additional ground of misconduct by the insertion of a new s.8(1) (a) “failing to comply with the duty under section 5 of the Safeguarding and Clergy Discipline Measure 2016 (duty to have due regard to House of Bishops’ guidance on safeguarding children and vulnerable adults).” The same wording is in s.3 (1) (b)) of the Clergy Conduct Measure (CCM), which is due to come into force next year and supersede the CDM (News, 12 July 2024).
As Mark Hill points out in the fourth edition of his Ecclesiastical Law, at (6.13), the duty is to have regard to the guidance, and so the clergy are not obliged to follow it in every instance. Thus “if a cleric had regard to the guidance but consciously departed from it for cogent reasons”, this might not amount to misconduct. But the message is clear: a safeguarding failure can amount to misconduct, which puts the clergy in precisely the same position, albeit by a different route, as if they were employees and in secular employment.
Moreover, the 2024 amendments to the Draft Clergy Conduct Measure (see the revised s.20) have ensured that, in safeguarding cases, if not already notified, the relevant diocesan safeguarding officers (DSOs) are to be notified and made a party to the case, so that they can have access to material relevant to their work. Furthermore, it is understood that DSOs hope that, in future, they may themselves refer cases into the discipline system more speedily.
This is because, at present, there may be a safeguarding investigation taking place in relation to a cleric, which is not already in the discipline system, and it is only very much late on in the safeguarding investigation that a decision is made to lay a CDM complaint.
THERE still seems to be an assumption, however, that moving to employment status for the clergy would result in a “command-and-control” situation, whereby the diocesan bishop (as the employer?) could deal more swiftly with errant clergy than under church disciplinary procedures.
In reality, the operation of disciplinary procedures in secular employment has to be handled extremely carefully, given that the process is subject to the overall statutory requirement that the employer must act reasonably in treating the reason for the dismissal as a sufficient one. Secular HR departments could tell the Church what a minefield this can be.
Furthermore, the secular notion of dismissal from employment, with the accompanying remedies, sits oddly with the scheme in the CCM. Moreover, I have yet to see it explained how employment status would improve the “mutual accountability” about which Bishop North spoke.
In 2002, the Government issued a discussion paper in which it proposed to use s.23 (4) of the Employment Relations Act 1999 to confer employment rights on ministers of religion. The Church of England’s response stated that to move to employment status would have major implications “for the nature of the relationship between bishop and clergy and for the way in which parochial clergy are deployed”.
Many clergy would, I know, go further and agree with the submission of the Roman Catholic Church that: “Any extension of employment rights to the clergy would . . . attack the very basis of Christian ministry.” Given the great improvements to the procedures by which safeguarding is now dealt with, it would surely be better to concentrate on simply making these work.
To answer the three questions posed at the start, the present safeguarding procedures can be made to work. Clergy employment status is neither appropriate, nor, in a deeper sense, right.
John Duddington is the editor of Law and Justice: The Christian law review and the author of The Church and Employment Law (Routledge, 2023).
Letters
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