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    Church of England Minister granted an appeal against a decision that he was neither an employee or worker

    In Sharpe v Worcester Diocesan Board of Finance Limited and another UKEAT/0243/12 the Employment Appeal Tribunal considered whether an Employment Judge was entitled to strike out the claims of a Minister of the Church of England at a Pre-Hearing Review on the basis that he was neither an employee nor a worker. 

    The claimant, Mr Sharpe, was an ordained minister in the Church of England and worked as a Rector in the Diocese of Worcester from 2005 to 2009.  He brought claims that he had suffered detriment as a result of making public interest disclosures and that he was then constructively and unfairly dismissed.  He brought his claims against the Worcester Diocesan Board of Finance (DBF) and the Bishop of Worcester in his corporate capacity.

    In February 2012 an Employment in a Pre-Hearing Review found that the tribunal had no jurisdiction to hear Mr Sharpe’s claims as he was neither an employee of the respondents or a “worker” within the meaning of sections 43K and 230 Employment Rights Act 1996. 

    The claimant appealed the decision to the Employment Appeal Tribunal.  After the hearing of the appeal it was stayed pending the decision of the Supreme Court in another case (President of the Methodist Conference v Preston [2013] UKSC 29).  In that case the Supreme Court held that a Methodist Minister was not an employee and could not therefore bring an unfair dismissal claim.  Although the law lords in the Supreme Court disagreed as to whether or not on her particular facts the claimant in Preston was an employee they were unanimous in holding that the question as to whether a Minister served under a contract of employment could no longer be answered simply by classifying the occupation by type: office or employment, spiritual or secular.  There was no longer a general presumption against ministers serving under contracts.  The correct approach was to examine the rules and practices of the particular church and any special arrangements made with the particular minister.  Whether an arrangement was a legally binding contract depended on whether the parties intended the benefits and burdens of the ministry to be the subject of a legally binding agreement between them.

    In this case after hearing of the appeal it was stayed pending the decision of the Supreme Court in Preston.  Once that judgment was handed down both parties submitted further written submissions on its significance in the present case.  The claimant argued that the approach of the Court in Preston clearly showed that the Judge applied the wrong test at the Pre-Hearing Review.  The respondent argued that Preston vindicated the approach and conclusions of the Employment Judge and that it was fatal to the claimant’s appeal.

    The claimant also appealed against the admissibility of and the Employment Judge’s reliance on the expert evidence of a Professor McClean who was described by the Judge as “an acknowledged expert in the field of ecclesiastical law”.  The claimant argued that Professor McClean’s evidence went beyond his remit, to include opinion evidence on whether the claimant worked under a legally binding contract which was a matter of law that was solely for the Employment Judge to determine. 

    The Employment Appeal Tribunal allowed the claimant’s appeal finding that in light of the authority the Employment Judge at the Pre-Hearing Review had erred in his approach to several of the issues.  The matter was remitted to a fresh tribunal. 

    The Employment Appeal Tribunal found that the Employment Judge’s first error was to approach the issue of the existence of the contract by asking if it was necessary to imply a contract between the parties.  Lord Sumption had made it clear in Preston that it was not sensible to regard the relationship between a minister and the church as implied, if there is in fact a great deal of documentation that governed that relationship.  The real question was whether those documents and that relationship, properly analysed, could be said to indicate a contract and specifically a contract of employment.  The Judge in this case should therefore have looked in detail at the rules and practices of the Church of England, the manner in which the claimant was engaged and all the relevant documentation including the Bishop’s papers and various Canons and Measures in order to determine if they were characteristic of a contract of employment.

    The Employment Appeal Tribunal did not agree with the Employment Judge that the words “terms on which he is or was engaged in work” implied the existence of a contract and found that he had erred in determining the issue on that basis.  The purpose of the statutory extension in section 43K Employment Rights Act 1996 was to go beyond the normal remit of the employment legislation.

    The Employment Appeal Tribunal found that the Judge’s failure to consider the admissibility of the expert evidence and permit the expert to give opinion on the matters that were solely his to determine was an error.  Despite his self-direction to treat the expert evidence with caution the EAT found that the Judge instead accepted much of Professor McClean’s evidence uncritically and used it to form a number of his conclusions in a case such as the apparent powers of the Bishop which the Professor had described as “toothless provisions”.

     Humphreys & Co. 14. 3. 14