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Ministers of Religion and Employment Rights: An Examination of the Issues
Published online by Cambridge University Press: 31 July 2008
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In 1998 the government published a White Paper entitled Fairness at Work. It invited views on whether legislation should be introduced to take the power to extend the coverage of employment protection rights by regulation to all those who work for another person, not just those employed under a contract of employment. It would not have been apparent from this that the government was considering extending employment protection rights to ministers of religion. Nor is it likely that many people realised this could be the effect of section 23 of the Employment Rights Act 1999 by which Parliament subsequently enacted the proposal contained in the White Paper. Nonetheless the possibility was recognised as the Bill passed through Parliament. Pressed about the government's view as to the position of ministers of religion, the Minister explained that no policy decision had been taken, but he did say:
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References
1 Fairness at Work (Cmnd 3968), para 3.18.Google Scholar
2 Mr Michael Wills MP.Google Scholar
3 Parliamentary Debates (House of Commons), Standing Committee E (2 March 1999), col 238.Google Scholar
4 These include R v Bishop of Stafford, ex parte Owen (2000) 6 Ecc LJ 83, CA.Google Scholar The fullest report is in Hill, Mark, Ecclesiastical Law (2nd edn) (Oxford, 2001), p. 273.Google Scholar Subsequent proceedings in which the bishop sought possession of the parsonage house were settled: Bishop of Stafford v Owen (2002) 7 Ecc LJ 105. It was Mr Owen who petitioned the European Parliament.Google Scholar
5 See the Employment Rights Act 1999, s 230(2).Google Scholar
6 See the Workmen's Compensation Act 1906, s 13. Note that the scope of the Workmen's Compensation Act 1897 was narrower.Google Scholar
7 See the National Insurance Act 1911, Sch 1, Pt I(a).Google Scholar
8 Re National Insurance Act 1911, Re Employment of Church of England Curates [1912] 2 Ch 563 at 569.Google Scholar
9 Ibid, at [1912] 2 Ch 568–569.
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11 Scottish Insurance Commissioners v Paul 1914 SC 16.Google Scholar
12 Ibid at 27.
13 The nearest approach was in Re Employment of Ministers of the United Methodist Church (1912) 107 LT 143, where counsel argued that the ministry was a vocation rather than an employment in the vulgar sense of the word.Google Scholar
14 Rogers v Booth [1937] 2 All ER 751, CA.Google Scholar
15 Ibid, at 753G.
16 Ibid, at 754H.
17 Ibid, at 754A-C.
18 President of the Methodist Conference v Parfitt [1984] QB 368 at 375G–378B. [1983] 3 All ER 747 at 752, CA.Google Scholar
19 Ibid, at [1984] QB 375C–E, [1983] 3 All ER 751. This is a quotation from a pamphlet entitled The Methodist Ministry.
20 Ibid, at [1984] QB 376F, [1983] 3 All ER 752.
21 Ibid, at [1984] QB 377H, [1983] 3 All ER 753.
22 Davies v Presbyterian Church of Wales [1986] 1 All ER 705, [1986] 1 WLR 323. HL.Google Scholar
23 Ibid, at [1986] 1 All ER 709, [1986] 1 WLR 329A–D.
24 Santokh Singh v Girn Nanak Gurdwara [1990] IRLR 309, CA.Google Scholar
25 It is, however, necessary for the priest to be able to read the Holy Granth and it is desirable that he should have an interest in music.Google Scholar
26 See Coker v Diocese of Southwark [1995] ICR 563, Industrial Tribunal.Google ScholarThe chairman of the tribunal was the distinguished labour lawyer, Professor R W Rideout. He took the view that Re National Insurance Act 1911, Re Employment of Church of England Curates [1912] 2 Ch 563 had been impliedly overruled by Davies v Presbyterian Church of Wales [1986] 1 All ER 705, [1986] 1 WLR 323. HL. and that it was open to him to conclude that there was an intention that a curate should be employed by way of a contract of service.Google Scholar
27 Diocese of Southwark v Coker [1998] ICR 140 at 147E–148B, CA.Google ScholarThe judgment of the Employment Appeal Tribunal is Diocese of Southwark v Coker [1996] ICR 896, EAT.Google Scholar
28 Percy v Board of National Mission of the Church of Scotland 2001 SLT 497.Google Scholar
29 Note that the case was brought under the Sex Discrimination Act 1975 and, accordingly, the question before the court was not whether the minister had a ‘contract of service’ but a ‘contract of service … or a contract personally to execute any work or labour’: see s 82 (1) of the 1975 Act.Google Scholar
30 Church of Scotland Act 1921, s 1, Schedule, Art IV.Google Scholar
31 Percy v Board of National Mission of the Church of Scotland 2001 SLT 497 at 503, para 14. Because the court held that the associate minister was not an employee, it did not have to go on to consider whether, if she had been an employee, the Church of Scotland Act 1921 operated to exclude the Sex Discrimination Act 1975 or had been impliedly amended by it.Google Scholar
32 Paragraph 7 of the Response.Google Scholar
33 In Percy v Board of National Mission of the Church of Scotland 2001 SLT 497 at 502, para 9, Lord Rodger said that ministers and assistant ministers were office holders, However, as his judgement makes clear, he did not consider that this relationship created legal relations between a minister and the Church of Scotland. He was using the phrase in a uniquely Scottish sense as a member of an ecclesiastical establishment not subject to the supervision of the civil law. This may be an appropriate place to note the response of the Church of Scotland to the DTI discussion paper. It seeks to maintain its exemption from employment protection legislation, but not on the basis of its Declaratory Articles. Rather it argues that its existing procedures afford its ministers suitable protection: most ministers enjoy freehold, and church legislation is proposed to protect the position of those who do not. Nonetheless one can see that amendment of the law to extend protection would raise a significant constitutional issue.Google Scholar
34 Hill, , Ecclesiastical Law, p 10, gives examples of statutes that have been enacted since 1919.Google Scholar
35 Until recently, the only issue in the Church of England that was live was whether those enjoying the freehold enjoy too much security. For a legal analysis, see Bursell, , ‘The Parson's Freehold’ 2 Ecc LJ 259. For a consideration of the policy issues,Google Scholar see Bowlby, , ‘The Parson's Freehold and Clergy Discipline' 3 Ecc LJ 30.Google Scholar
36 See the Pluralities Act 1838, s 98. The view is generally taken that section 98 applies to all curates, although this does not seem to be a natural reading of the Act. The authority for this proposition is Baddely's Case (1872), referred to in Phillimore,Google ScholarEcclesiastical Law (2nd edn, 1895) but unreported. It is likely that there was no written judgment in this important case, the matter being decided on a preliminary point in an oral hearing before Archbishop Tait (Dr Deane, the Vicar-General, sitting with him as an assessor):Google Scholar see The Guardian 18 December 1872. It was by virtue of the general operation of section 98 of the 1838 Act that Parker J was able to hold that curates were office holders in Re National Insurance Act 1911, Re Employment of Church of England Curates [1912]2 Ch 563.Google Scholar
37 Sedgwick v Bishop of Manchester (1869) 38 LJ Eccl 30.Google Scholar
38 This involved considerations of fairness towards the minister, but also the sense of grievance with which complainants would have been left if there had been no adjudication upon the complaints.Google Scholar
39 See R v Archbishop of Canterbury, ex parte Poole (1859) 28 LJ QB 154.Google Scholar
40 See paras 11 and 15 of its Response.Google Scholar
41 Abbott v Sullivan [1952] 1 KB 189, [1952] 1 All ER 226, CA. In this case Denning LJ relied upon M'Millan v General Assembly of the Free Church of Scotland (the ‘Cardross’ case) (1861) 23 D 1314, in which the Court of Session was prepared to review a decision of the Free Presbytery of Dunbarton to suspend a minster who was alleged to have kissed a married woman while under the influence of drink. The judgment of Lord Deas in particular is interesting in that he stresses (at 1346–1347) the irrelevance of whether the contract being reviewed has a spiritual content: ‘… if the association make a compact with certain of his members that, on condition of the latter going through a long course of study and preparation. and devoting themselves exclusively to the labours of the ministry, they shall be held qualified and inducted … into the charge of particular congregations. with a right to certain emoluments as a means of livelihood, and on the footing that the qualification thus conferred shall not be taken away except for one or more of certain causes, to be ascertained by certain tribunals, acting in a specified order, then the association, or its members, if they break this compact, may become liable for the consequence, precisely as if the emoluments had been attached to a purely secular qualification and employment’ Denning LJ says that M'Millan was approved in Forbes v Eden (1867) LR 1 HL Sc & Div 568, 5 M (HL) 36, although it is perhaps fairer to say that it was distinguished without being doubted.Google Scholar
42 Lee v Showmen's Guild of Great Britain [1952] 2 QB 329, [1952] 1 All ER 1175, CA.Google Scholar
43 Bonsor v Musicians' Union [1956] AC 104. [1955] 3 All ER 518. HL. [1955] 3 WLR 788, HL.Google Scholar
44 This appears in a Report by the House of Bishops in 1943 and is cited inGoogle ScholarClergy Conditions of Service: a Consultative Paper (August 1994) (GS 1126). The emphasis is in the original.Google Scholar
45 At the end of 1993 it was estimated that there were 19 clergy willing and suitable to take stipendiary posts but not presently employed.Google Scholar
46 A precedent exists in the ‘ecclesiastical exemption’ applying to listed buildings: see the Planning (Listed Buildings and Conservation Areas) Act 1990, s 60, and the Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994, SI 1994/1771. As has been seen (note 33 above), the Church of Scotland also suggests that exemption should be given in circumstances where ministers enjoy satisfactory protection.Google Scholar
47 Paragraph 9 of the Response. This statement is ambiguous. It appears to be of general application but it could, alternatively, be limited to ministers of religion with secular employers (e.g. hospital chaplains) whom no one doubts have contracts of employment. Note that the Response subsequently (para 11) talks about the issues arising as having (among other things) theological implications.Google Scholar
48 AMICUS has about two thousand members who are ministers of religion or church workers. Some of them (e.g. hospital chaplains) will be employees, Of the 873 members surveyed, 25 per cent replied. AMICUS commented that their response was good for a postal survey. To the writer it suggests that the membership as a whole may be somewhat equivocal about pushing for employee status.Google Scholar
49 The Church of England, the Church of Scotland and the Methodist Church all propose improving their current procedures.Google Scholar
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