The Terms of Service Measure and the Clergy Discipline Measure
by Philip Jones
The Ecclesiastical Offices (Terms of Service) Measure 2009 does not make clear how the ‘capability procedure’ that it introduces will interact with the disciplinary procedure provided by the Clergy Discipline Measure 2003 (‘the CDM’).
There will be no difficulty in the case of lay ministers, since they are not subject to the CDM. Nor does the CDM address medical incapacity (or incapability), only misconduct. However, the CDM, which was passed only 6 years before the Terms of Service Measure, was intended to provide a comprehensive disciplinary code applicable to beneficed and licensed clergy on equal terms.
S.9(1) of the 2009 Measure provides that the Terms of Service Regulations made thereunder shall not affect proceedings for misconduct under the CDM. However, the definition of ‘misconduct’ in the CDM includes ‘neglect or inefficiency in the performance of the duties of … office’ (s.8(1)(c)). This suggests that the disciplinary procedure of the CDM will overlap with the capability procedure of the 2009 Measure to a considerable extent. The distinction between ‘neglect or inefficiency’ and non-medical ‘incapability’ is very hard to understand.
Ms Judith Egar, of the Church of England legal office, made a bold and thought-provoking attempt to explain the relationship between the capability procedure and the CDM in an article published in the Ecclesiastical Law Journal (September 2008, p.328). She acknowledged that the two regimes overlap to some extent, but suggested that they serve different purposes.
First, she argued that the CDM is concerned with ‘misconduct’, whereas the capability procedure addresses failure to perform to an acceptable professional standard. However, as mentioned, the CDM does include ‘neglect or inefficiency’ in its definition of misconduct. Thus inefficiency is misconduct under the CDM.
It may be that the word ‘inefficiency’ in the CDM was not well chosen. It can open the door to a great many trivial complaints, as even the most conscientious people are sometimes inefficient. Ms Egar expressed the hope that the capability procedure will reduce the number of complaints of inefficiency under the CDM, but it is arguably more appropriate to amend the wording of the CDM, rather than introduce a second procedure.
Another distinction suggested by Ms Egar is that the CDM procedure is concerned with punishing past misconduct, whereas the capability procedure is concerned with improving future performance. The CDM is undeniably concerned with past conduct, but the lesser penalties that it prescribes (injunction, conditional deferment, conciliation) address future performance as well.
S.2(1)(d) of the 2009 Measure refers to ‘remedies’ for inadequate performance, whereas the 2003 Measure provides for ‘penalties’ (at s.24). However, the potential outcome of the disciplinary procedure and of the capability procedure is essentially the same for the individual concerned, loss of office. Moreover, disciplinary penalties which do not involve loss of office can also have a remedial character, as well as a penal character.
Ms Egar illustrated her suggested distinctions between the CDM and the capability procedure with a hypothetical case of a scatterbrained vicar whose persistent administrative incompetence culminates in a disciplinary complaint after she forgets to turn up to a funeral which she is due to conduct. Ms Egar’s solution to this hypothetical case is to take the option of no further action under the CDM (s.13), and use the capability procedure instead, to improve the vicar’s office skills.
However, this solution involves a radical reinterpretation of the ‘no further action’ option provided by the CDM. The official background note to the CDM suggests that no further action is appropriate to ‘a technical breach of discipline … of insufficient significance to warrant further action …’. Ms Egar’s interpretation, by contrast, is that no further action is appropriate, not because the disciplinary issue is too trivial, but because it is too serious.
It may, of course, be appropriate for an inefficient officeholder to be required to undergo remedial training but this might be achieved within the CDM framework by an injunction. An injunction is defined in the CDM as ‘an order to do, or to refrain from doing, a specified act’ (s.24). Also, if the officeholder frankly admits her shortcomings and seeks help, this is a mitigating factor which may justify a less severe penalty such as a rebuke, or the deferment of a penalty. But that is not the same as abandoning the disciplinary proceedings altogether.
However, the policy and wording of the CDM itself allow little scope for a separate capability procedure. The CDM was intended to be a comprehensive disciplinary regime for all the clergy, a ‘unified procedure’ as the official note expresses it. It was intended to put an end to the unequal disciplinary treatment of beneficed and licensed clergy, and makes clear that a licence ‘shall not be termined by reason of [a minister’s] misconduct otherwise than by way of [CDM] proceedings’ (s.8(2)). If a separate capability procedure was thought necessary, why was it not incorporated into the CDM?
There is a danger that the capability procedure will revive the very distinction between beneficed and licensed clergy that the CDM sought to remove, with the latter being dealt with under the capability procedure, the former under the CDM. Another danger is that the CDM will be circumvented, as all disciplinary issues except criminal offences and grossly scandalous misbehaviour will be dealt with by the capability procedure.
This may result in a saving of expense for the Church, but may not be an attractive prospect for individual clergy. Under the CDM, misconduct must be proved or admitted before any penalty can be imposed, and the officeholder has a right of appeal from the disciplinary tribunal on findings of fact as well as on points of law (s.20(1)(b)).
The capability procedure may be subject to the scrutiny of a secular employment tribunal, but an employment tribunal does not require an employer to prove an employee’s misconduct, only to be satisfied that the employer acted fairly and reasonably in the circumstances. An employment tribunal’s findings of fact may not generally be appealed. Even if a dismissal is ruled unfair, the employment tribunal cannot compel the employer to reinstate or reengage the employee.
The Code of Practice issued under the CDM (s.39) was amended in 2011, in an attempt to address the inconsistency. However, the amended Code still maintains the impossible distinction between ‘neglect or inefficiency’ and ‘incapability’. It offers no clear guidance as to which cases will be determined under the CDM and which under the capability procedure. It says only that the choice whether to follow the CDM procedure or the capability procedure ‘will need to be determined on a case by case basis’ (para 259). It suggests vaguely that ‘It is in the interests of justice for there to be flexibility between [the two procedures] … so that cases are dealt with in the most appropriate way’ (para 260). Significantly, it does not provide that a clergyman has the right to choose the CDM procedure over the capability procedure.