Pray for fairness

The Church of England has proposed extending employment rights to the clergy for the first time which, if granted by the Government, could pose some interesting issues.

ow do you manage the performance of members of the clergy? Could clergy members be allowed to limit their work week to 48 hours? Such questions may ultimately arise if the Government accepts the Church of England’s proposals to extend employment rights to the clergy.

The Government has the power, under section 23(2) of the Employment Relations Act 1999, to extend employment rights to groups of individuals of its choosing. The question now is whether or not it will choose to extend to the clergy such rights as the right to redundancy payments, holidays, protection from unfair dismissal and access to Employment Tribunals.

At the moment, members of the clergy are considered to be office holders answerable to God rather than to a terrestrial authority. The relationship is seen as spiritual, not temporal. This means that the normal rules governing employment relationships do not apply to the relationship between a clergyman and the Church.  Notwithstanding this, 86.5 per cent of clergy in a Durham Diocese survey agreed with the statement that “regardless of any legal rulings to the contrary, a de facto employment relationship exists between a priest and the Church”.

Who is an employee?

The question of who is or is not an employee has been considered by the courts on many occasions. Among the recommendations of the courts to assist with the question of whether or not a person is an employee are the following:

  • it is of critical importance that a person is required to render personal service. If he can perform the work by supplying someone else this will indicate that the contract is not a contract of service (as opposed to a contract for services). (Ready Mixed Concrete (South East) Limited v Minister of Pensions and National)

  • the employer is the one who determines “the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time and the place where it shall be done” (Motorola Ltd v Davidson and Melville Craig Group Ltd)

  • the following three requirements have been identified for there to be a contract of service:

“mutuality of obligations” (in other words a wage in return for work)

an express or implied agreement that the employing party would control the provision of the service

the other provisions of the contract are consistent with its being a contract of service. (Montgomery v Johnson Underwood Ltd (approved by the House of Lords in Carmichael v National Power plc))

an employee is one who is “employed as part of the business whereas under a contract for services his work although done for a business is not integrated into it but only accessory to it” (Stevenson Jordan and Harrison Ltd v MacDonald and Evans)

The court should look at the “economic realty” of the individual circumstances – just because the parties have chosen to put a particular label on their relationship does not mean the court cannot look behind that label to divine the true nature of the relationship.

In fact, the modern approach is to use such of these tests, and to weigh up all of the relevant factors in each case. The court’s approach in the Ready Mixed Concrete case is now widely used, and the three fundamental questions asked in that case are set out at Box 1.

A welcome change?

AMICUS, the union representing Church and clergy workers, has been considering their plight for some time and has welcomed the proposals. A survey last year found that almost 50 per cent of members of the clergy thought their jobs were under threat. Also, 82 per cent knew of a colleague who had been “treated unacceptably”, and 81 per cent recorded fears about how their Church authority would handle a dispute between a priest and the Church. 

The cudgels have already been taken up by Reverend Owen, formerly team rector at the parish of Hanley in Staffordshire.  When his seven-year term under the Bishop’s licence was not renewed in 1999, Rev Owen took his case to the High Court and the Court of Appeal. He was unsuccessful. He was denied permission to appeal to the House of Lords and so presented his case to the European Parliament’s petitions committee in 2001. He claimed that his treatment by his Diocese, and his lack of protection under English law, amounted to discrimination on the basis of religion, nationality and the country of work.

The European Parliament found that the UK had broken no laws but in a 2002 report by the Committee on Employment and Social Affairs said that “there is a clear case for ensuring that the clergy are not at a disadvantage by comparison with other workers where employment rights…are concerned”. This was hailed as a victory by the Reverend’s supporters, but the European Parliament’s judgment has no direct impact on UK law. The Church did, however, re-hire him as pastoral auxiliary to the Bishop of Stafford.

Interesting issues

The proposal to bring the clergy within the employment fold raises interesting issues. Laws introduced in December 2003 prevent discrimination on grounds of sexual orientation. The regulations prohibit discrimination in terms of recruitment arrangements, offers of employment, any failure to offer employment, and opportunities for training or promotion, terminating employment. The issue of clergy who are practising homosexuals is already a hot topic. The laws allow discrimination on grounds of sexual orientation where the employment is “for the purposes of an organised religion” or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers. 

The Church will now have to satisfy these criteria to justify discriminating against homosexual applicants. It is likely to be only a matter of time before a claim is made that it is not necessary for the Christian Church to treat homosexual applicants differently to heterosexual applicants. This will certainly lead to interesting evidence and cross-examination of witnesses in the Employment Tribunal.

What about the Working Time Regulations? Workers are permitted to opt out of the maximum 48-hour working week (although the European Commission proposes withdrawing this opt out). Indeed, how are the weekly working hours of a parish priest to be measured? A recent case found that time spent sleeping by a doctor on call should count as working time. 

Regulation 2(1) of the Working Time Regulations confirms that working time means “any period during which [a worker] is working, at his employer’s disposal and carrying out his activity or duties”. 

The first European Court case to define what constitutes working time was Sindicato de Médicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana. The doctors were required to work 40 hours a week plus any time as may be required as a result of being on call. For example, one group of doctors were required to work from 8am to 3pm, to which period was added, every 11 days, a period of duty on call extending from the end of the working day until 8am the following morning. The doctors complained that the EC Working Time Directive had not been properly implemented, as when a doctor was on call, only time actually worked was taken into account in determining the maximum working time. The ECJ ruled that time spent on call by an employee must be regarded as working time for the purpose of calculating the limits under the Directive where the employee is obliged to be present and available at the workplace with a view to providing his or her services. 

However, where the employee is on call by being contactable without having to be at the workplace, only time linked to the actual provision of services must be regarded as working time. In that situation, even if they are at the disposal of their employer, in that it must be possible to contact them, employees are able to manage their time with fewer constraints and pursue their own interests.

If vicars are to be prevented from working more than an average of 48 hours per week, how many of them will struggle to fit their duties into a 48-hour period where they are to be available to minister to their flock day and night? 

Another interesting issue is performance management. To dismiss an employee fairly an employer must demonstrate one of five permissible fair reasons for dismissal. Capability is one such reason, usually meaning poor performance.  Employment tribunals expect employers to performance manage their staff before dismissing them. Will the Church be required to performance manage priests?  How will it judge performance? What sort of targets will have to be set before fairly dismissing an under-performing vicar?

James Baker is an associate in the Employment Law group of Macfarlanes

Points to consider

  • Did the worker undertake to provide his own work and skill in return for remuneration?

  • Was there a sufficient degree of control to enable the worker fairly to be called a servant?

  • Were there any other factors inconsistent with the existence of a contract of service?

Cases and legislation

  • Section 23 Employment Rights Act 1996

  • Ready Mixed Concrete (South east) Limited v Minister of Pensions and National Insurance [1968] 2QB 497

  • Motorola Ltd v Davidson and Melville Craig Group Ltd [2001] IRLR 4

  • Montgomery v Johnson Underwood Ltd [2001] IRLR 269, CA

  • Carmichael v National Power plc [2000] IRLR 43

  • Stevenson Jordan and Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101, C

  • Lee v Chung [1990] IRLR 236

  • Market Investigations v Minister of Social Security [1969] 2 QB 173

  • Report by the European Committee on Employment and Social Affairs on the Petition by the Reverend Owen (Petition 395/2001)

  • Sindicato de Médicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana: C-303/98

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