Ecclesiastical law

Tag: Diocese of Southwark v Coker 1998

Curates and Contracts: England and Scotland

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.

The Removal of an Irremovable Pastor: Sharpe v Diocese of Worcester

Dismissal and Attempted Dismissal

In the 20th century the courts held, in a number of reported cases, that sacked ministers of religion were not employees of their Churches, and so not eligible to claim compensation for unfair dismissal or breach of other statutory rights enjoyed by employees.  This persistent refusal to recognise an employment status in ministers of religion has given rise to the canard that clergy are ’employed by God’.

Most of the cases concerned non-Anglican ministers of religion.  However, in Church of England Curates, Employment (1912) 2 Chancery 563, and Diocese of Southwark v Coker (1998) Industrial Cases Reports 140, the courts held that assistant curates do not have contracts of employment.

Then, in the case of Percy v Board of National Mission of the Church of Scotland (2006) Industrial Cases Reports 134, the House of Lords departed from the 20th century trend.  Ms Percy was an associate minister of the Church.  She was accused of misconduct, resigned and made a claim of sex discrimination (not unfair dismissal)  in the employment tribunal.

The House of Lords held that Ms Percy did have a contract with the Church (through the Board), even if not necessarily an employment contract, and so the employment tribunal did have jurisdiction to hear her discrimination claim.

Ms Percy was an ecclesiastical officeholder, but ‘holding an office, even an ecclesiastical office, and the existence of a contract to provide services, are not necessarily mutually exclusive’ (p.141).  Nor should there be a presumption that there is no intention to make a contractual relationship where ministers of religion are concerned.

Nor did the ‘spiritual’ nature of a clergyman’s work preclude a contractual relationship.  There was ‘no cogent reason today to draw a distinction between a post whose duties are primarily religious and [another] post … where this is not so’ (p.143) and ‘[no] difference in principle between … clergy appointed to minister to our spiritual needs … [and] doctors appointed to minister to our bodily needs’ (p.176).

Unfortunately the Percy case gave rise to further misunderstandings among courts and commentators.  The tendency to assume that ministers of religion could not have contracts was succeeded by a tendency to assume that they must have contracts.  There was also a tendency to treat all ministers of religion as a single generic group, regardless of which Christian denomination, or even which religion, they belong to.

These errors were recently corrected in President of Methodist Conference v Preston (formerly Moore) (2013) UK Supreme Court 29.  Ms Preston (she changed her name while the litigation was ongoing) was a Methodist minister.  She resigned and claimed constructive unfair dismissal in the employment tribunal.  However, a majority of the Supreme Court held that Ms Preston did not have a contract of employment with the Methodist Church, or any contract, and so could not bring a claim in the employment tribunal.

This did not mean that the House of Lords had been wrong to hold that Ms Percy did have a contract with the Church of Scotland.  It meant only that the relationship between the Methodist Church and Ms Preston was different from that between the Church of Scotland and Ms Percy. 

In Ms Preston’s case, the Supreme Court found that ‘the manner in which a [Methodist] minister is engaged is incapable of being analysed in terms of contractual formation.  Neither the admission of the minister to full connexion nor her ordination are themselves contracts.  Thereafter, the minister’s duties are not consensual.  They depend on the unilateral decisions of the [Methodist] Conference’ (paragraph 20).

The constitutional structures of the Methodist Church (18th century congregationalist) and the Church of Scotland (16th century presbyterian) are obviously different.  Speaking in Preston, Lord Sumption (a historian by discipline), criticised the ‘abstract categorisation of ministers of religion’ (para 26).  He held that ‘The correct approach is to examine

[1] the rules and practices of the particular Church and

[2] any special arrangements made with the particular minister’.

Even before the Percy case, ministers of religion were not completely defenceless against dismissal.  The effect of the 20th century case law was that clergy could not claim wrongful dismissal or unfair dismissal, for lack of contract.  However, case law from the 19th century makes clear that the courts will protect clergy from what might be described as attempted dismissal.

Attempted dismissal occurs when a bishop or other Church authority purports to dismiss a clergyman, but lacks the legal power to do so under the Church’s own constitution.  The clergyman does not have to prove that he has a contract with his Church.  Attempted dismissal is discussed in two Scottish cases M’millan v General Assembly of the Free Church of Scotland (1861) 12 Scottish Revised Reports (second series) p.772 and Forbes v Eden (1867) Law Reports 1 Sc&D 568.

The Rev Mr M’Millan was purportedly dismissed by the Free Church following allegations that he had ‘exhibited symptoms of intoxication in his walk, appearance, breath and indistinctness of speech’ and, while in that condition, had ‘endeavoured to kiss a married woman in her own house and behaved violently and immodestly towards her’ (p.798).  Mr M’Millan claimed that his dismissal was a ‘gross and flagrant violation’ of the Free Church’s constitution (p.772).

The Court of Session agreed with Mr M’Millan that, if the Free Church had contravened its own constitution in dismissing him, such action would be ‘against, and so far against, law that this [secular] Court must be entitled to interfere’ (p.788).  An attempted dismissal would be declared null and void, and damages might be awarded if the minister could prove a loss.

Forbes v Eden concerned a minister of the Scottish Episcopal Church.  Lord Chancellor Chelmsford stated that

‘the possession of a particular status, meaning by that term the capacity to perform certain functions or to hold certain offices, is a thing which the law will recognise as a patrimonial interest, and that no one can be deprived of its possession by the unauthorised or illegal act of another without having a legal remedy’ (p.575).

In Long v Bishop of Cape Town (1863) 15 English Reports 756, which concerned the Anglican Church of South Africa, the Privy Council overruled the Bishop’s purported dismissal of the Rev Mr Long, holding that the Bishop had no constitutional power to dismiss him.

The two Scottish cases were approved by Lord Denning (then Lord Justice Denning) in Abbott v Sullivan (1952) 1 King’s Bench 189.  He held that a remedy for wrongful removal from office ‘is as much the law of England as of Scotland’ (p.204).  They were also approved by the House of Lords in Percy.

However, claims of attempted dismissal are rare.  Moreover, they cannot be brought in the employment tribunal, and they do not engage statutory employment rights.  Lord Denning observed that such claims occupy ‘an uncharted area on the borderland of contract and tort’ (p.206).

Sharpe v Worcester Diocesan Board of Finance and the Bishop of Worcester (2013) EAT 0243/12

The Reverend Mr Sharpe was a Church of England clergyman. Like Ms Preston, he resigned and claimed constructive unfair dismissal in the employment tribunal.  An appeal was then brought in the Employment Appeal Tribunal (‘the EAT’). 

Unlike the subjects of the two earlier Church of England cases, Mr Sharpe was a rector, not an assistant curate or licensed minister.  The EAT’s judgment records that his appointment pre-dated the new regime of ‘common tenure’ introduced by the Terms of Service Measure 2009 (see paragraph 21).  This means that, as a rector, Mr Sharpe enjoyed the old common law parson’s freehold (i.e tenure for life).  The EAT acknowledged that a benefice is ‘a freehold office belonging to the incumbent for the time being’ (paragraph 120).

The EAT took Lord Sumption’s guidance to heart, giving a lengthy account both of English ecclesiastical law and of the quasi-legislative practices followed in Mr Sharpe’s diocese.  The judgment also contains several paragraphs describing the ‘factual differences’ between Percy and Preston and Mr Sharpe’s case (158-172).  Then it recites the guidance given in Percy and other authorities on how to establish if a minister of religion has a contract.  After delivering this lengthy dissertation, the EAT sent the case back to the employment tribunal to find out whether or not Mr Sharpe had a contract.

Notwithstanding the discussion of the factual differences with Percy and Preston, it is argued that the EAT missed a factual distinction of critical importance to Mr Sharpe’s dismissal claim.  Ms Percy and Ms Preston did not have the parson’s freehold.

In paragraph 72 of the judgment, headed ‘Termination of the Rector’s Office’, the EAT correctly observed that, prior to the introduction of common tenure, a rector who is below the age of retirement can only be removed from office when specific statutory procedures have been completed, viz:

(1) disciplinary proceedings under the Ecclesiastical Jurisdiction Measure 1963 or the Clergy Discipline Measure 2003

(2) proceedings under the Vacation of Benefices Measure 1977

(3) proceedings under the Pastoral Measure 1983 (now the Mission and Pastoral Measure 2011).

Despite this correct self-direction, the EAT failed to draw the obvious conclusion.  If Mr Sharpe had the benefit of the parson’s freehold, and if the statutory procedures referred to in paragraph 72 had not been commenced against him, then he could not have been dismissed, whether actually or constructively, fairly or unfairly.  Therefore he could have no dismissal claim in the employment tribunal.  Such a claim denies the existence of the parson’s freehold, and also ignores Lord Sumption’s guidance in Preston

The older Roman Catholic law illustrates the point nicely.  It described freeholders, with Latin succinctness, as inamovibiles, ‘irremovable pastors’ (see Code of Canon Law 1917, canon 454.2). 

If Mr Sharpe could not have been dismissed, the question of whether or not he had a contract is somewhat otiose.  It is true that the Percy case makes clear that ecclesiastical office is not incompatible with a contract.  However, even if Mr Sharpe did have some sort of contract it could not have overridden his legal freehold.  

Therefore the question for the employment tribunal (and hence the EAT) was not ‘was there a contract?’, but ‘was there a dismissal?’.  Mr Sharpe’s freehold necessarily precluded a dismissal.  That should have been the end of his dismissal claim. 

As a freeholder, Mr Sharpe could not be dismissed, but he could still be a victim of attempted dismissal.  Suppose, hypothetically, the Bishop or other Church authority had interfered with Mr Sharpe’s tenure of office in some unlawful way (e.g by sending him a notice purporting to dismiss him, or obstructing him in the performance of his official duties) in order to force him out, then he could bring a claim in respect of this conduct.  However, such a claim would have to be brought in the High Court or county court.  The employment tribunal would have no jurisdiction over such a claim.

The EAT’s judgment does not indicate why Mr Sharpe made his claim in the first place.  News reports on the internet suggest that he and his family were subject to a nasty campaign of harassment by anonymous parishioners or others.  Mr Sharpe’s complaint against the Bishop and other diocesan authorities was not that they were involved in this harassment, but that they failed to support him against it.

Reading the news reports will inspire sympathy for Mr Sharpe, and for his family.  But it is hard to see how these facts could support a claim of attempted dismissal, of the kind affirmed in M’millan, Forbes and Long.  Attempted dismissal requires some active interference with the officeholder’s tenure by the Church authority, not merely lack of support.

That may not leave Mr Sharpe without a legal remedy.  Canon C18 provides that the bishop is the chief pastor of the clergy of his diocese, as well as the laity.  Hooker describes the bishop as ‘a pastor even to pastors themselves’.  Canon C23(1) provides that the rural dean (or area dean) has particular responsibility to advise the bishop of ‘any case of serious illness or other form of distress among the clergy’.  This may imply that the bishop has some corresponding responsibility to try to relieve clergy who are in distress.  Under the Patronage (Benefices) Measure 1986, the bishop has substantial, though not complete, control over the selection of a new incumbent for a parish.

Perhaps it could be argued that this relationship between the bishop and the incumbent may give rise to some common law duty of care or support on the part of the bishop and the Church towards an incumbent who faces a difficult pastoral situation.  Especially if the bishop knew or ought to have known that he was sending the incumbent to a difficult parish.  However, as with attempted dismissal, such a claim is made in tort rather than contract, and would not be a matter for an employment tribunal.