In 2011 a female Methodist minister won the right to bring a claim for unfair dismissal since she was held to be an employee of the President of the Methodist Conference. However in 2013 another case concerning a Methodist minister resulted in a decision of the Supreme Court (by four to one) that ministers are office holders and, as such, not employees. The case and its background were analysed by barrister Emily Walker.
The thorny question fell to be considered once again in the recent case of Sharpe v The Bishop of Worcester in which Reverend Sharpe sought to maintain a claim for constructive unfair dismissal after a campaign of victimisation. Reverend Sharpe lost his claim against the Bishop in the employment tribunal on the basis that he failed to meet the threshold tests (for eligibility to bring a claim). However he was successful on appeal to the Employment Appeal Tribunal and, from there, the matter found its way to the Court of Appeal.
Lady Justice Arden noted that the Church of England is not a legal person but it and its officers are governed by ecclesiastical law, including canon law. The office of rector or vicar in a particular parish is known as a benefice which carries with the freehold interest in the parsonage house. Pursuant to The Ecclesiastical Offices (Age Limits) Measure 1975 vicars have to retire at the age of 70. They may also be removed as a result of disciplinary proceedings. Appointment of vicars is made by patrons of the parish pursuant to a right known as “advowson”. Mr Sharpe was offered his appointment in October 2004. Following his appointment he was provided with “the Bishop’s Papers” containing information and advice “on matters spiritual and temporal” including his stipend, other financial matters, information about taking holidays and sick pay. However the Bishop was not in the practice of issuing instructions in the sense of an employer or a line manager.
Taking these and other features into account the employment tribunal concluded that there was no formal contract, let alone an employment contract. The appeal judge in the Employment Appeal Tribunal effectively reached on opposite conclusion based of the same facts. There were numerous indicators of an employment relationship, sufficient for one to be established. Having considered the evidence in considerable details Lady Justice Arden admitted that her mind wavered between both interpretations. She also referred to the Magna Carta, noting that its very first clause provides that the English Church should be free. “That would, I think, include freedom of thought and conscience for individual incumbents, free from interference by parishioners or the Church’s hierarchy.” She accordingly concluded that there was no employment contract between Reverend Sharpe and the Bishop. Similarly, there was no contract and he could not therefore be regarded as a worker.
Lord Justice Davis was sympathetic to Reverend Sharpe, saying that in the modern world and taking into account the challenges that they face such individuals “ought now to be regarded as employees and ought to have the tights that others have under the employment legislation”. However, based on the law and facts that was not a conclusion that he could reach in this case. Lord Justice Lewinson reached the same conclusion.
However there is hope for others who find themselves in a similar situation. the Ecclesiastical Offices (Terms of Service) Measure 2009 and the Ecclesiastical Offices (Terms of Service) Regulations 2009 came into force on 31 January 2011. Individuals who are subject to them have the right not to be unfairly dismissed on the ground of capability, which right can be enforced by employment tribunal proceedings. However the 2009 Measure makes clear that it does not create an employment relationship between office holders and any other person. Of course, the Measure and Regulations are of no practical assistance to others such as Catholic priests and Methodist ministers. It is therefore reasonable to assume that the remarkable number of cases concerning whether such individuals are “employed” by their churches or gods will continue unabated.