The Court of Appeal has recently decided that the Reverend Mr Sharpe did not have a contract, and so cannot bring a claim against the Church of England in the employment tribunal. Mr Sharpe’s case is discussed in an earlier blogpost which is filed below. There is also an interesting commentary on the case by Dr Russell Sandberg on the Law and Religion UK blog (2nd May 2015).
Mr Sharpe was the incumbent of a benefice (a rector). However, the Court of Appeal discussed its own earlier decision in the case of Coker v Diocese of Southwark (1998) Industrial Cases Reports 140, which held that an assistant curate, the Rev Dr Coker, did not have a contract either.
Sandberg’s commentary discusses the persistent uncertainty and fact-sensitivity of the employment status of ministers of religion. It may therefore be instructive to compare Coker with the House of Lords’ decision in Percy v Board of National Mission of the Church of Scotland (2006) 2 Appeal Cases 28. Ms Percy was, in effect, an assistant curate like Dr Coker, though described as an ‘associate minister’. The House of Lords held that Ms Percy did have a contract. However, it did not overrule or disapprove Coker. So why did the Scottish curate have a contract when the English curate did not?
Ms Percy’s appointment was made in the context of a pastoral reorganisation. A pastoral scheme was approved, uniting several parishes under the care of one incumbent minister. The scheme provided for the appointment of an associate minister to assist the incumbent (para 94).
The Board of National Mission therefore found Ms Percy, and sent her to the local presbytery. (The Church of Scotland, of course, has a presbyterian structure, not an episcopal one.) The presbytery licensed Ms Percy as associate minister. Later she was accused of an affair with a married man. The presbytery instituted disciplinary proceedings against her.
The account thus far suggests that Ms Percy was in exactly the same position as an English curate. Her position was part of the constitutional framework of the Church, because it had been constituted by the pastoral scheme. She assisted the incumbent. She required the Church’s licence to officiate, and she was subject to ecclesiastical discipline.
The great difference between England and Scotland concerned the role of the Board of National Mission in finding and sending Ms Percy. The Board offered Ms Percy the position of associate minister (para 118). They also agreed to pay her salary, and gave her other terms and conditions of appointment, to which she agreed. The presbytery was not involved in any of these arrangements.
Thus the Board did not simply present or nominate Ms Percy to the presbytery, as an English patron nominates or ‘presents’ a candidate to the bishop. They went much further than this. They made an agreement with Ms Percy which was in addition to, and distinct from, her licensing by the presbytery. By agreeing salary and other terms and conditions with her, they secured Ms Percy’s future performance of her duties. This proactive role of the Board in supplying paid clergy to the Church gave rise to its contract with Ms Percy.
An English patron, by contrast, assumes no responsibility for anything that happens after the candidate is licensed (or instituted). There seems to be no equivalent of the Board of National Mission in the Church of England. The account given in Percy suggests that the Board acts as a kind of recruitment agency for the Church of Scotland. They hire the curates and then supply them to the Church, rather as a ‘temping’ agency supplies temporary staff.
There is no such recruitment agency for curates in England. The Church Commissioners and various diocesan committees are involved in reorganisations of the parochial structure, and are responsible for paying clergy stipends and pensions, but they have no responsibility for supplying clergy to bishops or parishes in the first place. The bishop has a qualified duty to ‘provide, as much as in him lies, that in every place within his diocese there shall be sufficient priests’ (canon C18(6)). He performs this duty by ordaining and licensing or instituting clergy, but he does not make agreements with them or pay them.
The House of Lords’ account in Percy indicates that the Board of National Mission is only responsible for supplying associate ministers / curates, not incumbent ministers. New incumbents are chosen by their congregations. The Board is not involved in their selection (para 84). This in turn indicates that Scottish incumbents do not have contracts, only their curates do (though admittedly the House of Lords did not decide this point.) Therefore Mr Sharpe would have been no better off had he been a Scottish incumbent instead of an English one.
It was also held in Percy that the associate minister’s rights and duties ‘were defined by her contract [with the Board of National Mission], not by the ‘office’ to which she was appointed’ (para 34). This echoes the suggestion in Coker and in the earlier case of Employment of Church of England Curates (1912) 2 Chancery 563, that English curates cannot be employed because their duties are defined by law.
However, it is argued that contractual duties and legal duties are not mutually exclusive. The professional duties of solicitors are defined by law (they are officers of the court), but it is not disputed that solicitors can also be employed as such. The Percy case suggests that the duties of Scottish clergy are defined by law, just as much as those of English clergy. Article 3 of the Constitution of the Church of Scotland, which is scheduled to the Church of Scotland Act 1921, states that the Church ‘acknowledges its … duty to bring the ordinances of religion to … very parish in Scotland through a territorial ministry’ (quoted at para 80). As an associate minister, Ms Percy shared this legal duty.
Yet legal duties imposed on clergy in general may still be allocated, delegated to or distributed between individual ministers by agreement, and for an agreed salary. The point is, that a clergyman who claims a contract for service(or services) must show that these legal duties have also been incorporated into the contract.