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
 the rules and practices of the particular Church and
 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.