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Employment Law

Legal guidance - compliance - software

20 MAY 2013

When do the secular courts protect the rights of a minister of religion? When is a minister of religion called by God to a non-contractual relationship and when does she do her job under a contract?

The Supreme Court held in The President of the Methodist Conference v Preston that a Methodist minister was not an employee and therefore had no claim for unfair dismissal.

Question for the Supreme Court

Haley Anne Preston was a Minister of the Methodist Church until 2009. The Employment Tribunal dismissed her claim of unfair dismissal on the basis that she was not an employee. The Employment Appeal Tribunal and the Court of Appeal disagreed.

The question for the Supreme Court concerned the essential character of the relationship between a Minister in full connexion with the Methodist Church who held a particular appointment within the Church and the governing body of the Church. By majority, the Supreme Court concluded that it did not give rise to legal rights and duties and both sides, and that the rights and duties which existed did not constitute a contract of employment.

Lord Sumption and the Majority Judgment

Lord Sumption reviewed the caselaw and noted that there had been two recurrent themes: the distinction between office-holders and employees, and the idea that the spiritual nature of a minister's calling meant that the relationship between a minister and a church did not create legal relations. In Diocese of Southwark v Coker [1998] ICR 140, the Court of Appeal held that a stipendiary assistant curate was not an employee, and two of the judges considered that there was a legal presumption that ministers of religion were office-holders who did not serve under a contract of employment. The House of Lords in Davies v Presbyterian Church of Wales [1986] 1 WLR 323 adhered to the distinction between an employment and a religious vocation, although they did not exclude the possibility of legally-enforceable obligations arising via the law of trusts. In President of the Methodist Conference v Parfitt [1984] QB 368, the Court of Appeal held that a minister was not an employee. The leading modern case until the present had been Percy v Board of National Mission of the Church of Scotland [2006] AC 28. The House of Lords had taken the view that offices and employments were not always mutually exclusive categories and there could be a contract of employment alongside a minister's occupation as an office.

Lord Sumption accepted that, following Percy, the question whether a minister served under a contract of employment could no longer be answered simply by asking whether the occupation was an office or employment, or whether it was spiritual or secular. Nor could it be answered by relying on the presumption that ministers generally did not work under a contract of employment because of the spiritual nature of the work. The primary considerations were the manner in which the minister was engaged and the character of the rules or terms governing her service. The background upon which the exercise of contractual construction should occur included the fundamentally spiritual purpose of the functions of a minister of religion.

His Lordship examined the Methodist Deed of Union in detail, noting in particular that the ministry was of a life-long character, from which a minister could not resign without acceptance by the President, and that Methodists adhered to a doctrine of priesthood for all believers, with the same disciplinary code for lay members and ministers. The Church did not regard the stipend or the manse as consideration for the services of the minister; they were material support without which the minister could not serve God.

For Lord Sumption, the three cumulatively decisive features were: first, the manner in which a minister was engaged (through admission into full connexion and ordination) was incapable of being analysed in terms of contractual formation; second, the stipend and manse were provided because of admission into full connexion and ordination, and not the work done; third, there was no right to resign unilaterally, even on notice. These features made the ministry a vocation and not an employment.

Ms Preston relied on the way in which she had been invited in writing to take up the position of Superintendent Minister at Redruth, and had accepted in writing. Lord Sumption said, "In other contexts, an exchange of letters like this one might well have given rise to a contract." Nevertheless, because the exchange occurred within the framework of the Church's standing orders, it meant they were only part of a much longer procedure. The invitation from the local committee was only a recommendation to the President. The relevant relationship was between the minister and the Conference, which had the power to move Ms Preston between circuits. She was serving not under the five-year relationship to which she was invited, but under a life-long ministry.

Lord Sumption said that the analysis of the Employment Appeal Tribunal and Court of Appeal gave rise to difficulties. First, it would mean that almost any arrangements for the service of a minister of religion would give rise to a contract, unless the minister was a non-stipendiary volunteer. Secondly, the analysis of offer and acceptance in the correspondence was inconsistent with the standing orders. The supposed contract would not fit into the scheme of the Church's constitution. Third, Lord Sumption found Ms Preston's case indistinguishable from Parfitt. He said that the Court of Appeal had been wrong, and had got around Parfitt by over-analysing Percy and by paying insufficient attention to the Deed of Union and standing orders.

For Lord Sumption, the central question was whether the parties had intended to enter into a legally binding agreement. He said that the correct approach was to examine the rules and practices of the particular church and any special arrangements made with the particular minister. He declined to answer how a minister could enforce a claim to a stipend and to occupation of a manse, without a contract, but said these benefits were probably enforceable as part of the trusts of the Church's property.

Lady Hale's Dissent

Dissenting, Lady Hale pointed out that just as there was nothing saying that the relationship was a contract of employment, there was nothing saying that it was not, so their Lordships could approach the issue with an open mind.

She observed that the spiritual nature of religious ministry did not prevent there from being a contract of employment, pointing out that rabbis are normally employed by a particular synagogue, and that priests appointed to the Church of England are now engaged on "common tenure" terms which permit them to bring claims of unfair dismissal.

She also pointed out that it has always been possible to be an office-holder and an employee, as in the case of managing directors and university teachers. To Lady Hale (who, of course, is a former professor), universities had a good deal in common with organised religion. Indeed, she considered that the constitutional documents of the Methodist Church bore a strong resemblance to those of a university.

Lady Hale said that it would be very odd indeed if a minister who was not paid her stipend or who was threatened with summary eviction from her manse could not rely on the terms of her appointment to enforce the payment or resist eviction. Her Ladyship said that the problem with leaving the legal redress to the law of trusts was that the Church holds property under any number of different trusts, whereas the stipend is paid centrally and the body which controls her and is responsible for her remuneration and accommodation is the Conference. Another problem is that there is a distinction between just being a minister in full connexion with the Church and having a particular station or appointment within the Church. No minister, even retired, can give up the evangelical duty to do what they can for the Church, and no person in full connexion can give it up without permission. On the other hand, there was a process for assignment to particular posts, confirmed annually by Conference (although this was a rubber stamping process during the five years' appointment).

The main factor which told against the appointment to a particular station being a contract between the minister and the Church was that the minister had no choice, and must go where Conference stationed her. The reality, Lady Hale said, was almost certainly completely different. Ministers had to go where they were put, however, it would be a very foolish stationing committee that put a minister where she was not willing to serve. Lady Hale noted that they had had very little evidence about this, and did not think that a prior commitment to go where you are sent negates a mutual contractual relationship when you are sent and agree to go to a particular place.

Everything about the relationship looked contractual, Lady Hale considered, just as in Percy. It was a very specific arrangement for a particular post, at a particular time, with a particular manse and a particular stipend, and with a particular set of responsibilities. It was an arrangement negotiated at local level but made at a national level. According to Lady Hale, the Church may well have had good reasons to be concerned about Ms Preston's performance, but the allegation was that instead of investigating the concerns, the Church had reorganised the Circuits so as to make the investigation unnecessary and deprived Ms Preston of her post by reorganising it out of existence, without any of the safeguards to which she would have been entitled if an employee.

Implications

The Supreme Court used the facts of Ms Preston's case to distinguish her job for the Methodist Church from the job of Ms Percy for the Church of Scotland (the previous leading case on the employment status of ministers of religion). Therefore, it seems that whether the UK secular courts will give a minister of religion the right to complain of unfair dismissal in future cases will depend on the specific and individual facts about the working relationship between the minister and her Church.

It should be noted that the anti-discrimination laws protect a wider class of worker than employees, including workers under a contract personally to do work, who cannot complain of unfair dismissal. Nevertheless, protection under the Equality Act 2010 against discrimination still requires that the work is done under a legally-binding contract. Therefore, it appears that, at least at a domestic level, whether the secular courts will give a minister of religion the right to complain of discrimination in future cases will again depend on the specific and individual facts about the working relationship between the minister and her Church. Some ministers of religion will find themselves in the same vulnerable position as volunteers, whom the Supreme Court recently held in X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59 to be outside the protections of equality law.

Lord Sumption stated that the judgments of the Employment Appeal Tribunal and Court of Appeal (and by implication Lady Hale's dissent) were problematic for him, because they would mean that almost any arrangements for the service of a minister of religion could give rise to a contract of employment. As an employment practitioner, it is difficult to understand his concern, given that from 2011 the default position for ministers of the Church of England (the biggest UK Church) has been to hold their office under terms of common tenure, which give very similar rights and protections to those which employees enjoy under the employment statutes, and given that rabbis are generally employed by their synagogues or by the synagogue movement (eg Lew v Board of Trustees of United Synagogue [2011] EWHC 1265 (QB)). Further, in my experience, ministers of religion generally do their jobs under a complex set of written rules and procedures anyway, much more detailed than in many other cases in which the employment tribunals do not hesitate to imply contracts of employment. It is hard to see what unfairness or injustice would be caused to religious organisations if their arrangements with their ministers of religion were recognised as contracts of employment, in accordance with the reality as described by Lady Hale.

As there are no bishops in Methodism, this case does not seem to have any implications for the ongoing debate about women bishops in the Church of England. At present, despite their rights under domestic and EU law, the would-be women bishops seem intent on keeping their dirty linen away from the secular courts.

Harini Iyengar

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